Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Senior Clerk for Respondent. At sometime prior to December 19, 1988, Petitioner purchased a nonrefundable airline ticket departing on December 23, 1988, and returning on December 30, 1988. Thereafter, Petitioner requested 40 hours of annual leave for the workdays of December 23, 1988, and December 27-30, 1988 and requested her personal holiday for the workday of December 28, 1988. On December 19, 1988, Petitioner was informed that she had 21.2 hours of available annual leave and was granted 16 of those hours for the workdays of December 23, 1988, and December 27, 1988. Petitioner's request to take her personal holiday on December 28, 1988 was denied, as was her request for annual leave for the period of December 28-30, 1988 denied. Upon being advised that a portion of her leave request had been denied, Petitioner told her supervisor about the airline ticket and that she "could not afford to lose my investment of my air-fare." Her supervisor, in turn, advised Petitioner that if she were absent December 28-30, 1988 she would be deemed to have abandoned her position. Notwithstanding such knowledge, Petitioner was absent from work without authorized leave for the three consecutive workdays of December 28-30, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1185 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 3. Not supported by competent and substantial evidence. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 5. Addressed in paragraph 4. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ms. Nancy M. Morrison 1925 Coolidge Hollywood, Florida 33020 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues raised in this case are those set forth in a petition of May 18, 1987, in which the Petitioner, Richard Herring, challenged former Rule 22SM- 3.007, Florida Administrative Code, which became effective on May 29, 1986, and the amendment to that rule which had an effective date of February 1, 1987. In particular, Petitioner believes that the rule in its prior and existing forms exceeded the authority of the enabling legislation which is stated to underlie the promulgation. Petitioner contends that the rule in the prior and present form is arbitrary and capricious. Petitioner claims that the rule in its terms establishes penalties not authorized by the legislature. Petitioner believes that material changes were made to the rule following public hearing which were not supported or noticed or required by statute. Finally, Petitioner argues that the economic impact statements associated with the prior version of the rule and the February 1, 1987, version are not adequate, in that they do not apprise the Petitioner or others similarly situated of the negative implications of the rule. Exhibits and witnesses Richard Herring testified in his own behalf and called as witnesses Pam Hill and Vivian Pyle. In furtherance of his claims he submitted Petitioner's Exhibits 1-29, 32-39 and 42-45 which were received into evidence. Respondent offered Don Bradley as a witness in defense of this action.
Findings Of Fact On July 30, 1984, Richard Herring became a member of the Senior Management Service Personnel System within the State of Florida. He was recognized as a member of Senior Management from that day until March 2, 1987, the date he voluntarily left that system. During that time he served as Deputy Director of Developmental Services within the State of Florida, Department of Health and Rehabilitative Services (HRS). In confirmation of his elevation to the status of Senior Management employee, correspondence of August 3, 1984, was sent to the Petitioner over signature of Vivian Pyle, Central Personnel Officer for HRS. A copy of that letter may be found as Petitioner's Exhibit 2 admitted into evidence. As had been explained in his recruitment, the letter reminded the Petitioner that any future annual leave which he accumulated in excess of 480 hours effective as of the anniversary date of his employment would be converted to sick leave on an hour for hour basis. It further stated that at the point of separation from Senior Management Service, Herring, as an appointee to that system, would be paid for unused annual leave, not to exceed 480 hours. The rule provision pertaining to annual leave in effect at the time of Petitioner's acceptance into Senior Management Service was Rule 22SM-1.12(3), Florida Administrative Code. That rule became effective on March 16, 1981. A copy of the rule may be found as Petitioner's Exhibit 1 admitted into evidence. The rule in the aforementioned subpart stated: (3) A Senior Management appointee shall be paid for unused annual leave upon separation, not to exceed 480 hours; all other Senior Management benefits shall cease. Payment for sick leave may be made when permitted by Section 110.122, Florida Statutes. The Department of Administration determined to revise the existing rules pertaining to Senior Management Service. To this end, on February 21, 1986, Respondent gave notice of its proposed rule changes. This notification was given in the Florida Administrative Weekly. A copy of the notice, together with the full text of the proposed rule as contemplated in the notice, may be found as Petitioner's Exhibits 4 and 5 submitted into evidence. The notification states that the change calls for the repeal of existing Rules 22SM- 1.01 through 22SM-1.14, Florida Administrative Code, and the contemporaneous adoption of Rules 22SM-3.001 through 3.011, Florida Administrative Code. This meant that the Respondent had in mind the repeal of the aforementioned Rule 22SM-1.12(3), Florida Administrative Code. The stated purpose of these changes was ". . . to provide a more clearly defined rule structure for the Senior Management Service and to allow for 1985 statutory revisions." The statement of economic impact of the rule was that it would be limited only to the administrative cost of promulgation of the new rules. As noticed, the proposed Rule 22SM-3.007 at Section (6) stated: Upon appointment to a Senior Management position of a person moving from a position in state government outside the Senior Management Service, any leave accrued and unused by the person in the prior position shall be subject to the following: Special compensatory leave credits shall be paid for in cash prior to appointment to the Senior Management Service. Regular compensatory leave shall not be transferred into the Senior Management Service. Annual leave shall be retained and be credited to the employee's account for use by the employee with approval of the agency head pursuant to Section 22SM-3.007(3) or paid for on termination from state government. Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from the Senior Management Service. Sick leave not paid for shall be retained and be used or be subject to terminal payment in accordance with Subsection (4) above. Subsection (6)(c) to proposed Rule 22SM-3.007 as it speaks to the payment previously earned for annual leave upon termination from state government pertains to new employees who would be appointed to Senior Management positions following the effective date of the rule. It does not contemplate the question of payment of annual leave for those persons who had been appointed to Senior Management Service prior to the effective date of the proposed rule. In fact, the overall Chapter 22SM-3 as proposed did not speak to the question of payment of unused annual leave accrued by those existing employees when they left Senior Management. Conversely, Subsection (4) to this proposed rule spoke to the matter of payment for sick leave for employees who were in Senior Management before the effective date of the proposal, a counterpart to Subsection (6)(d) dealing with employees who would come after the effective date of the proposed rule. The statement of the summary of the rule changes contemplated by the notice of February 21, 1986, may be found in a copy of the summary, Petitioner's Exhibit 6 admitted into evidence. In that summary it indicated: . . . The rule sets certain requirements agencies must conform to in the areas of appointments, performance evaluations, attendance and leave for employees appointed to positions in the Service. Agencies are required to maintain personnel files and records which shall be subject to post audit review by the Department of Administration. Under the statement of economic impact in the summary dealing with cost or benefits to persons directly affected, it was stated: It is estimated that the leave benefits will benefit Senior Management Service employees, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. . . . A public hearing was held on the proposed Chapter 22SM-3. The hearing date was March 7, 1986. In the summary of the hearing and changes, a copy of which may be found as part of Petitioner's Exhibit 7 admitted into evidence, it is noted that the State of Florida, Department of Insurance, recommended that the payment be made for excess annual leave when an employee leaves Senior Management Service and moves to another service. That change was not adopted. The executive summary of the proposed Rules 22SM-3, found as part of Petitioner's Exhibit 7 admitted into evidence identified the fact of the replacement of Chapter 22SM-1 with proposed Chapter 22SM-3 and the fact that any changes to the noticed version of the rule of February 21, 1986, were said to represent only minor technical changes recommended by the Joint Administrative Procedures Committee. It was stated that no changes were made as a result of the public hearing held on March 7, 1986. This is taken to mean that there were no substantive changes made in that the summary of the public hearing and changes did identify certain modifications to the proposal that were recommended and adopted following the public hearing session. None of those changes that resulted from the public hearing spoke to proposed Rule 22SM-3.007. On May 6, 1986, Glenn W. Robertson, Jr., Secretary to the Administration Commission, wrote to Gilda H. Lambert, Secretary, Department of Administration, to advise her that on that date the Administration Commission had approved with amendment the request to repeal existing Rules 22SM-1.01 through 1.14, Florida Administrative Code, and to adopt proposed Rules 22SM- 3.001 through 3.011. A copy of that correspondence may be found as Petitioner's Exhibit 8, together with the statement of the executive summary identifying the proposed permanent rule amendments which were contemplated by the Administration Commission. Within the statement of amendments promoted by the Administration Commission was an amendment to proposed Rule 22SM- 3.007(6)(c), which stated: (6)(c) Annual leave shall be retained and credited to the employee's account for use by the employee with approval of the agency head pursuant to Section 22SM-3.007 or if the employee is transferring to Career Service, up to 240 hours of Annual leave will be transferred. Any Annual leave balance after the 240 transfer will be paid for except that the amount accrued (sic) since the employee's last anniversary will be paid for on a prorated basis in accordance with the appropriate accrual rate for Career Service. Annual leave will be paid for on termination from state government. Termination from state government --. This change to proposed Rule 22SM-3.007(6)(c) was at the instigation of the Commissioner of Agriculture in the language. . . . or if the employee is transferring to Career Service, up to 240 hours of Annual leave will be transferred. Any Annual leave balance after the 240 transfer will be paid for except that the amount accrued (sic) since the employee's last anniversary will be paid for on a prorated basis in accordance Service. Annual leave will be paid for on termination from state government. This was not the choice of the Department of Administration in terms of the substance or placement of this language. Ultimately, the language set forth in the amendments to the proposed Rule 22SM-3.007(6)(c) as found in Petitioner's Exhibit 8 made their way into the final version of the rule. The language prompted by the Agriculture Commissioner had not been contemplated by the language noticed when the rule was proposed on February 21, 1986, nor was it the product of public comment in the public hearing of March 6, 1986, or based upon remarks received from the APA committee or material received by the proposing agency within 21 days of notice of the proposed rule. The language was never noticed in the Florida Administrative Weekly. In May 1986, upon an unspecified date, certification was given from the Department of Administration to the Secretary of State confirming the adoption of Rules 22SM-3.001 through 22SM-3.011, Florida Administrative Code. The effective date of this adoption was May 29, 1986. A copy of that certification to the Department of State may be found as Petitioner's Exhibit 9. A copy of the summary of changes by the Administration Commission in its May 6, 1986 meeting setting out the suggested language of the Agriculture Commissioner on the topic of Rule 22SM-3.007(6)(c), Florida Administrative Code, may be found in Petitioner's Exhibit 10. This item, as well as the language from Subsection (6)(c) and which was sent to the Secretary of State's office and became the final version of that rule subsection, included an additional sentence which stated, "Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from Senior Management Service," and which had not been set out completely in the executive summary sent to Secretary Lambert on May 6, 1986, found as Petitioner's Exhibit 8 admitted into evidence. This most recently quoted language is, however, the same language as found in the last sentence of Subsection (6)(c) to the notice of that matter given on February 21, 1986. In the final analysis, the changes suggested by the Commissioner of Agriculture were a part of the Administration Commission's deliberations. The final summary of the rules amendments which was filed with the Secretary of State on May 9, 1986, did not depart from the initial summary of the rules amendments pertaining to the replacement of Rules 22SM-1.01 through 22SM-1.14 with Rules 22SM-3.001 through 22SM-3.011. The statement of economic impact remained the same as well. A copy of the summary of the rules amendments and the final statement of economic impact may be found as Petitioner's Exhibit 11 admitted into evidence. The final version of proposed Rule 22SM-3.007(6)(c), which was enacted, was no more specific on the subject of payment of annual leave credits upon termination of an employee who had been appointed to Senior Management Service prior to the effective date of the rule than was the version of that provision noticed on February 21, 1986. When Subsection (6)(c) is read in the context of the overall Section (6), the language describes that experience pertaining to persons appointed to Senior Management following the effective date of the rule and their leave credits brought with them. It does not describe those who were already employees in the Senior Management system before the effective date of the rule and their annual leave credits or annual leave credits earned by new employees upon admission to the Senior Management Service. This circumstance, taken together with the repeal of the previous Rule 22SM- 1.12(3), Florida Administrative Code, means that the question of the payment for annual leave hours upon the termination from Senior Management Service after May 29, 1986, for those who had been appointed to Senior Management Service before that date was unresolved by rules of the Department of Administration beyond May 29, 1986, as was the matter of how to deal with hours earned by the new members who came into the Senior Management Service. This circumstance would remain until the passage of an amendment to Rule 22SM-3.007, Florida Administrative Code, effective February 1, 1987. Petitioner challenged Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, by petition of May 18, 1987. In that same petition, he challenged Rule 22SM-3.007, Florida Administrative Code, effective February 1, 1987. All accumulated annual leave for which Petitioner claims entitlement to payment had been accumulated prior to February 1, 1987. As forecast, Respondent determined to amend certain rules within Chapter 22SM-3, Florida Administrative Code, to include Rule 22SM-3.007, Florida Administrative Code. To this end, on October 17, 1986, Respondent gave notice in the Florida Administrative Weekly of its intention. The summary given by the notice of October 17, 1986, stated: The rule amendments provide for clarification of the designation of positions to be included in the Senior Management Service, provide for the transfer of leave between services, provide for the accrual of 240 hours of annual leave and 120 hours of sick leave each year, and provide for membership in the Senior Management Service class of the Florida Retirement System. The comments on economic impact found in the notice were to the effect: The executive agencies will be required to expend approximately $11,628 in the aggregate to implement the provisions of this rule. The overall purpose and effect of the rules changes was explained as being implementation of provisions made by the 1986 Legislature, as to Part IV, Chapter 110, Florida Statutes. See Petitioner's Exhibit 13/14 admitted into evidence. In this amendment to Rule 22SM-3.007, Section (6) in existing language becomes Section (10) in the new language. Subsection (6)(c) in the existing language is modified at Subsection (10)(c) by referring to employees as members and deleting the language beginning with " . . or if the employee is transferring . . ." to the end of that Subsection (6)(c). There are added Sections (5) and (6) in the proposed rule which address the circumstance of annual leave credit for persons who were in Senior Management Service at the point the prospective effective date of the rule noticed on October 17, 1986, as well as annual leave credits earned by employees who became members after the effective date of the amendment to the rule. This is a new addition not found in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, which was silent on the treatment of annual leave credits for persons who had been in Senior Management Service before May 29, 1986, and the leave credits yet to be earned by those who became members after that date. For Petitioner's purposes, in this challenge, the proposal to add Sections (5) and (6) was tacit recognition of the fact that in the provisions set forth in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, the question of payment for annual leave upon termination of employees who had been hired before the effective date of that rule was not addressed. The language of the proposed amendment to Rule 22SM- 3.007 at Section as noticed on October 17, 1986, indicated: Upon transfer of a Senior Management Service member to a position in state government outside the Senior Management Service, annual leave credits shall be retained and shall be calculated and credit as follows: All annual leave credits accrued on the member's last anniversary date shall be prorated at the rate of 20 hours monthly or 9.230 hours biweekly for each period worked thereafter. If the member is transferring to the Career Service, up to 240 hours of annual leave will be transferred and any annual leave balance in excess of 240 hours shall be paid for in cash. Subsection (5)(b) in the proposed amendment spoke to the transfer of 240 if the employee transferred to Career Service, and payment for excess balance over 240 hours earned while Senior Management employees for all that class of employees regardless of their point of employment in the same way Subsection (6)(c) of the May 29, 1986, rule spoke to those matters of payment for annual leave brought with them related to employees who would become members of the Senior Management Service on May 29, 1986, and subsequently. A second category of payment for annual leave was described in the proposed rule noticed on October 17, 1986, Rule 22SM-3.007(6), which stated: Annual leave will be paid for upon termination from state government. Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from the Senior Management Service. This statement pertained to those employees who were members of the Senior Management Service prior to the enactment of the proposed rule and those who would become members and earn credits after the enactment. None of the provisions in the proposed amendments advertised on October 17, 1986, dealt specifically with transfer of or payment for annual leave credits for persons who were not leaving state government, not going to Career Service, but leaving the Senior Management Service to go into other positions within state government over which the Department of Administration had no control as to personnel matters. Effective March 3, 1987, Petitioner transferred to such an organization, namely, the State Legislature. The proposed amendment to Rule 22SM-3.007 noticed October 17, 1986, at Section (3) increased the credit for annual leave and sick leave from 176 hours to 240 hours and 104 hours to 120 hours, respectively. It is couched in terms of giving these benefits upon the appointment and on the anniversary date of appointment to the Senior Management Service. At the commencement of the steps taken to amend Rule 22SM-3.007, Florida Administrative Code, the overall summary of the amendments spoke in terms of the provision for transfer of leave between the personnel services, and the increase in accrued leave to 240 hours of annual leave and 120 hours of sick leave and the provision of membership in the Senior Management Service class of the Florida Retirement System. The statement of the economic impact indicated that the executive agencies would be required to expend approximately $11,628 in the aggregate to implement this rule. The statement of costs or benefits to persons directly affected was said to be: It is estimated that the leave benefits will benefit Senior Management Service members, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. This comprehensive statement of the summary of rules and the economic impact statement may be found as Petitioner's Exhibit 15 admitted into evidence. A public hearing was scheduled for November 7, 1986, and was held in the Larson Building auditorium, Tallahassee, Florida. This was the sole public hearing held to consider the amendments contemplated by the October 17, 1986, notice. By letter of November 5, 1986, a copy of which may be found as Petitioner's Exhibit 16 admitted into evidence, James J. Parry, Director of the Office of Human Resources, State University System of Florida, made mention of his concerns about the proposed amendments. In particular, he was concerned that the higher annual leave and sick leave credits provided in the Senior Management Service and the ability to convert those to sick leave presented potential liability to the State University System when hiring individuals who had been members of the Senior Management Service. He urged change in the language of proposed Rule 22SM-3.007(5) which would make it clear that the annual leave credits had to be transferred from Senior Management Service to the receiving employer according to that governmental body's personnel plan, if unaffiliated with the Department of Administration. Furthermore, he suggested that if the annual leave had been converted to sick leave while the employee was with Senior Management Service, upon the affiliation of the employee with the State University System there was a potential of passing along the cost of payment of that unused sick leave upon the termination of that employee's affiliation with the State University System or other governmental employer. He pointed out his belief that the economic impact statement in the proposed rule amendment only spoke to the increase in annual leave credit when in fact there would be an increase in sick leave credit as well. This references the economic impact statement at paragraph 1 to Petitioner's Exhibit 15 where mention is made of the cost incurred to an agency for annual leave accrual rates without mention of concomitant increases in cost for sick leave credits. Parry, by his November 5, 1986, remarks set out in the Petitioner's Exhibit 16, did not reference any specific concern about whether the agency for whom a Senior Manager had worked prior to transfer to the State University System would be liable for payment of annual leave hours accrued prior to transfer. Don Bradley, Chief of the Bureau of Classification and Pay, Department of Administration, received the November 5, 1986, Parry letter on November 6, 1986, a day before the public hearing. (Bradley is the principal author of the version of Rule 22SM-3.007, Florida Administrative Code, under consideration.) That letter was introduced into the record of the public hearing. Bradley recalls that Parry's concern as expressed in the letter and at the point of the public hearing revolved around the fact that the State University System would not allow accumulation of annual leave credit as high in total hours as was allowed by the Senior Management Service. Parry, according to Bradley, wanted to see a revision to the rule amendment which specifically stated that any transferred hours from Senior Management Service to the State University System be in accordance with the personnel rules on annual leave credits utilized by the State University System. Parry is not reported to have expressed an interest at the public hearing on the question of the employing agency of an employee within the Senior Management Service needing to pay for unused annual leave credits prior to transfer of the employee into the State University System, per se. Bradley recalls that there was a related discussion on who would pay for annual leave the State University System did not accept in an effort by Parry to clarify that his organization would not be responsible for payment. The proposed amendments to existing Rule 22SM-3.007 were presented to the Administration Commission. This was done by transmittal to the Office of Planning and Budget of the Governor's Office and from there to the Cabinet Aides to members of the Administration Commission. This submission occurred a week prior to the Cabinet meeting at which the Administration Commission considered the question of the amendments. As set out in Petitioner's Exhibit 17 containing a memorandum from the Department of Administration Secretary, Gilda H. Lambert, dated November 25, 1986, reference is made to the Cabinet Aides' consideration of proposed amendments to 22SM-3.007, described in that document as 22SM-1.007 and changes brought about in this session. That meeting of Cabinet Aides took place on the morning of November 25, 1986, causing certain revisions to be made to the proposed rules on Senior Management Service. It is unclear how the notice was given of the Cabinet Aides' meeting at which point Mr. Bradley and Mr. Parry discussed changes to the proposed amendment to Rule 22SM-3.007, Florida Administrative Code. In any event, it does not appear that Petitioner would have been apprised of this session. Among those items addressed by Secretary Lambert was a description of what was referred to there as 22SM-1.007 on attendance and leave at Section (5) on page 8 wherein she says that the revision was made to: Clarify that upon transfer to a position in state government outside the Senior Management Service, unused annual leave credits shall not be paid for and may be transferred subject to the rules governing the system into which the member is transferring. Within Petitioner's Exhibit 17 is the exact nature of Section (5) with the revision being employed. The new language is underlined in this rendition of the version of Section (5) after the Cabinet Aides' meeting. Upon transfer of a Senior Management Service member to a position in state government outside the Senior Management Service, annual leave credits shall not be paid for and may be transferred subject to the rules governing the system into which the member is transferring. All annual leave credits accrued on the member's last anniversary date shall be prorated at the rate of 20 hours monthly or 9.230 hours biweekly for each pay period or portion thereof, worked subsequent to the member's last anniversary date. As can be seen by this action, Subsection (5)(b) was deleted. These changes were not noticed by publication in the Florida Administrative Weekly. Mr. Bradley describes the underlined changes alluded to in the preceding paragraph as a product of ongoing negotiations between him and Mr. Parry which took place at the point of the Cabinet Aides' meeting dealing with the proposed amendment to Rule 22SM-3.007(5), Florida Administrative Code. In the response to the Parry concerns, Mr. Bradley did not feel that it was necessary to change the proposed language put out in the notice of October 17, 1986, pertaining to Rule 22SM-3.007(5) dealing with transfer of hours to a personnel system not administered by the Department of Administration, in that the receiving employers outside DOA controls were not obligated to receive annual credits above what was called for in their personnel systems. Nonetheless, he acquiesced in the inclusion of language in Section (5) arrived at in the Cabinet Aides meeting which made this point abundantly clear. It is that aspect of the change dealing with the transfer of annual leave credit subject to the rules of the governing system into which the member would be transferring that is seen to address Parry's concerns. The portion of the changes that deal with the unwillingness to pay for annual leave credits unless the employee is leaving Senior Management Service to go out of state government as contemplated by Section (6) may be seen as a related matter, in that the nonpayment of annual leave could cause the entire amount of those credits to be transferred over to the State University System or the Legislature to which Petitioner made his transfer. Nevertheless, Parry's emphasis was to make certain that the State University System not have to accept more annual leave credit than it would allow its employees to carry at any given point in time. The fact of nonpayment increases the potential liability for payment of unused annual leave on the part of a receiving agency. This reality does not comport with Parry's contribution before and at the point of public hearing in protecting his organization. His secondary concern expressed at the public hearing about not paying for excess annual leave his agency would not accept coincides with the idea that he wished to minimize the financial exposure of the State University System. This auxiliary position is not tantamount to advocacy which called for the abolishment of all payment for annual leave upon transfer. Finally, this last expression on the topic of payment for unused annual leave left at point of transfer does not give rise to the notion that it was sufficiently debated to notice interested parties that a rule would be enacted that disallowed payment for annual leave upon transfer to any state agency from Senior Management Service. The changes that came about in Section (5) by the Bradley/Parry discussion at the Cabinet Aides' meeting brought forth the additional penalty to the employee in Senior Management Service that annual leave credit would not be paid for in the future. This expression was contrary to the repealed Rule 22SM- 1.12(3), Florida Administrative Code, in effect prior to May 29, 1986, which allowed payment for annual leave upon any transfer, overturned the silence on this point in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, and set aside the less restrictive statement on payment for annual leave in Section (5) as advertised on October 17, 1986. On balance, the addition of the language following the Cabinet Aides' meeting in which it is stated that annual leave credits shall not be paid for in transfer to other state government employment is seen to be a product of the thinking of the Department of Administration, not sufficiently foreseen by actions in the public hearing on November 7, 1986, not duly noticed in the Florida Administrative Weekly and not based upon remarks received from the APA committee or material received by the proposing agency within 21 days of the October 17, 1986 notice. The summary of the hearing on November 7, 1986, pertaining to the proposed amendment to the rule describes the participation on the question of proposed Rule 22SM-3.007 of other agencies in state government, as well as Mr. Parry from the State University System. A copy of that summary of hearing and changes may be found as Petitioner's Exhibit 20 admitted into evidence. The statement of changes found within that exhibit included the elimination of the payment of annual leave in excess of 240 hours if an employee transfers to another position in state government outside of the Selected Exempt Service. This is taken to mean transfer of a Senior Management Service employee to Career Service as described in Subsection (5)(c) noticed on October 17, 1986. It does not speak to the absolute prohibition of payment for annual leave hours accrued prior to transfer from Senior Management Service to any receiving governmental agency. On December 30, 1986, the amendments to Rule 22SM- 3.007 were filed with the Secretary of State. A copy of that filing may be found as Petitioner's Exhibit 19 admitted into evidence. Those amendments to Rule 22SM-3.007, to include the changes at Section (5) disallowing payment for annual leave credits upon transfer to another state government agency from Senior Management Service are included. In accordance with the final language of the rule, there is set forth a summary of the rule amendments which may be found as part of Petitioner's Exhibit 21. It states: The rule amendments provide for clarification of the designation of positions to be included in the Senior Management Service, provide for the transfer of leave between services, provide for the accrual of 240 hours of annual leave and 120 hours of sick leave each year, and provide for membership in the Senior Management Service class of the Florida Retirement System. The statement of justification for the amendments was that the changes were made to implement 1986 legislation of Part IV, Chapter 110, Florida Statutes. The economic impact statement found within Petitioner's Exhibit 21 said that the aggregate cost to the executive agencies was $11,628. It stated that the number of position descriptions that were involved would be approximately four hundred. On January 31, 1987, there were 1370+ positions in Senior Management Service before the new rule provisions were placed in effect. On February 1, 1987, as a result of the implementation of the 1986 amendment to Chapter 110, Florida Statutes, there were left approximately three hundred fifty Senior Managers. Within the economic impact statement as finally established for the amendments effective February 1, 1987, it is said: It is estimated that the leave benefits will benefit Senior Management Service members, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. Mr. Bradley, author of Chapter 22SM-3, Florida Administrative Code, effective May 29, 1986, and the amendment to those provisions as printed out on February 1, 1987, said that the Department of Administration had in mind the creation of a Senior Management Service system to try to retain Senior Managers. This included the idea of the discontinuation of payment to Senior Managers except under circumstances where they left state government. He had in mind limiting the idea of automatic payment when a Senior Management Service employee went to the Legislature or the State University System or the court system. To his way of thinking, this would encourage the senior management to remain with the employing agency. As described before, his desired outcome is not achieved until such point as the last version of Rule 22SM-3.007(5), Florida Administrative Code, effective February 1, 1987, came into effect. This was an arrangement without due notice and without regard for the hardship created by the imposition of the nonpayment for transfer rule, unless it can be said that the increase in annual leave credit and sick leave credit contemplated by the February 1, 1987, version of Rule 22SM-3.007, Florida Administrative Code, is seen as an offset. It cannot be so regarded for persons such as the Petitioner who gained very little profit from the increase in annual leave and sick leave hours while losing a substantial number of annual leave credits when he left HRS to go to the Legislature. Petitioner had been made aware sometime in December 1986, of the language of the proposed amendment noticed on October 17, 1986, pertaining to Rule 22SM-3.007. The language discussing the purpose and impact of the proposed amendments would not have given rise to any concerns on his part about the changes that were eventually brought forth in the final version of the rule effective February 1, 1987. On December 10, 1986, Petitioner had an annual leave balance of approximately 536 hours. He used some leave around the Christmas holidays and reduced that, having in mind his belief that only 480 hours could be carried forward into the new year. He felt that he was being threatened in his position as a Senior Manager at HRS, given the fact that a number of Senior Managers were being replaced in that organization in late 1986. By cashing in an amount approaching 500 hours of annual leave, he expected to be paid an amount approximating $10,000, which might assist him in his change in job positions. On April 23, 1987, having not received word on his request for payment of annual leave for Senior Management Service, Petitioner wrote to the Secretary of the Department of Administration to ascertain the outcome of his request for payment. The Secretary was and is Adis Vila. At the same time he wrote to Vivian Pyle, HRS personnel official, making the same request. He expressed concern in his correspondence on the subject of an excessive amount of leave balance being shown by his present employer, the Florida Legislature. Copies of the correspondence to those two individuals may be found as Petitioner's Exhibits 26 and 27 admitted into evidence. By way of response, as noted in Petitioner's Exhibit 28 admitted into evidence, Ms. Pyle answers his inquiry and cites to the fact that Rule 22SM- 3.007(5), Florida Administrative Code, effective February 5, 1987, does not allow for the payment of annual leave upon transfer into the State Legislature system. In correspondence of that same date from Secretary Vila, a copy of which may be found as Petitioner's Exhibit 29 admitted into evidence, the Department of Administration makes reference to the fact that the May 29, 1986, Sections 22SM- 3.007(5) and (6), Florida Administrative Code, indicated that the annual leave should be transferred subject to the rules governing the system where the employee was transferred and that accrued annual leave would be paid only upon termination from state government. The rule referred to in the correspondence does not contemplate persons who had been employed before the rule became effective transferring annual leave to the State Legislature from Senior Management or being paid for that annual leave. Moreover, at the time of his transfer, the applicable version of the rule was the February 1, 1987, statement which specifically disallowed payment for annual leave in any circumstance other than leaving state government. Although an interpretation may be given that the Department of Administration believes that the version of Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, controls the question of the entitlement of Petitioner to payment for annual leave upon his termination from Senior Management Service on March 2, 1987, that interpretation is not an appropriate one. That version of the rule was amended on February 1, 1987, and by such amendment the language of the May 29, 1986, rule was superseded, regardless of the construction given the May 29, 1986, version of the rule. Consequently, the resolution of the Petitioner's claim to entitlement for payment for annual leave credits accrued must necessarily be resolved under the terms of the rule effective February 1, 1987, if controlled by rule. Based upon computer printout information about Senior Management Service employees who were in the program as of February 1, 1987, a copy of which may be found as Petitioner's Exhibit 32 admitted into evidence, Petitioner made calculations as to the value of accumulated annual leave for those employees if they were paid by the Department of Administration at that juncture. That value was in excess of $1.9 million. The calculation made by the Petitioner concerning the amount of potential money Senior Managers would have been entitled to upon transfer does not take into account the possibility of reduced payments in transfer to Career Service under the terms of Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986. Obviously, under that version of the rule and the version of February 1, 1987, termination from state government would allow for the payment of all outstanding annual leave. Petitioner's Exhibit 34 admitted into evidence is a copy of the employee handbook in effect at the time that Petitioner took his position with the Florida Legislature. It establishes that the employee may only carry 360 hours of annual leave forward into January 1 of an ensuing year. Hours above that are converted into sick leave. The sick leave credits are not paid in full if the Petitioner leaves state government after working in the Florida House of Representatives. The value of those sick leave hours would be 1/4 of all hours not to exceed 480 hours. When Petitioner left HRS, he asked to be paid for all but approximately 24 hours accumulated annual leave. It was determined subsequently that this meant that 432 hours were being requested for payment. Instead, HRS transferred 432 hours of annual leave to the Florida House of Representatives. The beginning balance of annual leave hours with the Florida House of Representatives was limited to 360 hours with the balance of 72 hours being subject to conversion to sick leave. The conversion of 72 hours of annual leave to sick leave upon the date of employment with the Florida House of Representatives was further exacerbated by the fact that 476.15 hours of sick leave was also sent over. The significance of this was that with the addition of 3.85 sick leave hours, he would reach the maximum number of allowable sick leave hours to be maintained at any given point by an employee of the Legislature. That amount of hours would have been added in the first month in that 8 hours and 40 minutes of sick are obtained for each month of employment by an employee of the Florida House of Representatives. Consequently, not only had 72 of his hours been disallowed as annual leave credit hours but also 68.15 hours within that 72 hours would have no value, in that 476.15 hours had been transferred as sick leave hours, leaving only 3.85 hours to be converted to sick leave from the 72 annual leave hours. Finally, throughout the 1987 year, Petitioner would earn annual leave credits and compensatory leave credits with the Florida House of Representatives, creating a potential loss in annual leave hours at the conclusion of the calendar year 1987 based upon the maximum number of hours having been transferred into the Florida House of Representatives personnel system upon his hiring and the influence of additional hours added to that total. In the payment for sick leave and annual leave as a member of the Legislature, Petitioner would receive a reduced hourly rate compared to the Senior Management position which Petitioner held with HRS, evidencing further economic disadvantage imposed by disallowing the Petitioner's request for payment for the annual leave upon transfer from HRS to the Florida House of Representatives. To further explain, when Petitioner transferred to the Florida House of Representatives, he took an $8,640 pay cut. Again, payment for the claimed hours of annual leave would have been somewhere approximating $10,000, which would have offset the dire consequences of the salary reduction when changing from HRS to the Florida House of Representatives. Petitioner never sought to present evidence or argument concerning Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, and the amendment to that rule effective February 1, 1987. Prior to this case, he did not participate in the public hearing which was conducted concerning those matters.
The Issue Whether the Petitioner should be treated as having abandoned his employment with the Respondent?
Findings Of Fact The Petitioner was a Career Service employee with the Respondent. The Petitioner received a copy of an Employee Handbook upon his employment with the Respondent. The Handbook informed the Petitioner of the rules governing absences from work, including the rule providing that an employee will be treated as having abandoned his position if absent for 3 days without authorized leave. The Petitioner was employed as an Investigator in the Child Support Enforcement Office of the Respondent in Inverness, Florida. The Petitioner's immediate supervisor was Shirley Barker. In June, 1986, the Petitioner suffered a seizure. The Petitioner subsequently underwent surgery for the removal of a brain tumor in June, 1986. The Petitioner returned to work following his surgery on approximately September 15, 1986. Ms. Barker determined that the Petitioner's performance was not up to standard and discussed the need for additional leave with the Petitioner. The Petitioner's physician agreed that it would be beneficial for the Petitioner to have additional time to recover from his surgery and recommended an additional six months leave of absence. The Petitioner signed a Report of Personnel Action indicating that he was going to take leave without pay. The Petitioner's leave was effective October 13, 1986, "for a period of 6 months with return pending medical reevaluation." This leave of absence ended on April 13, 1987. During the Petitioner's 6 months leave of absence he was given a monthly medical evaluation by his physician. In December, 1986, the Petitioner met with Ms. Barker and told her that he planned on returning to his position with the Respondent when his physician approved his return. The Petitioner did not, however, tell Ms. Barker when he would return or request an extension of his 6 months leave of absence. In March, 1987, the Petitioner met with Barbara Jordan, a supervisor in the Child Support Enforcement Office of the Respondent. This was the Petitioner's only meeting during 1987 with any employee of the Respondent. During this meeting the Petitioner did not indicate when he would return to work or request an extension of his 6 months leave of absence. By letter dated April 16, 1987, Herbert R. Hildreth, Sr., Human Services Program Manager, and Ms. Barker's supervisor, informed the Petitioner that his 6 months leave of absence had expired. The Petitioner was also informed that he should advise the Respondent by April 26, 1987, of his intentions concerning his employment with the Respondent. Mr. Hildreth's letter of April 16, 1987, was received by the Respondent on April 21, 1987. The Petitioner did not respond to Mr. Hildreth's letter of April 16, 1987, prior to April 26, 1987. By letter dated April 30, 1987, Judith Mesot, Deputy District Administrator of the Respondent, informed the Petitioner that the Respondent considered the Petitioner to have abandoned his Career Service position with the Respondent because the Petitioner had been on unauthorized leave since April 10, 1987. By letter dated May 27, 1987, the Petitioner informed the Respondent that his physician had informed him during a May 20, 1987, appointment that he could return to work on a part-time basis. At no time between October 13, 1986, and April 13, 1987, did the Petitioner inform the Respondent when he intended to return to work or request an extension of his 6 months leave of absence. The first time that the Petitioner informed the Respondent that he was ready to return to work was in his May 27, 1987, letter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, John Blackford, has abandoned his position with the Respondent, the Department of Health and Rehabilitative Services. DONE AND ORDERED this 15th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2617 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 and 4 To the extent that these proposed facts were proved by the evidence, see finding of fact number 3. 5 and 6 4. 7 5. 8 Hereby accepted. 9 and 10 6. 11 7. 12 Although the Petitioner testified that he met with Ms. Barker within one day after his monthly examina- tions, the weight of the evidence failed to support this testimony. See 8. Even if the Petitioner had met with Ms. Barker as often as the Petitioner indicated, the Petitioner still did not return to work or obtain approval of his absence after April 13, 1987. 13 and 14 To the extent that these proposed facts were proved by the evidence and are relevant, see finding of fact number 9. Most of these proposed findings of fact are not relevant, however. 15 10 and 12. 16 13. Respondent's Proposed Findings of Fact 1 1. 2 6. 3 10 and 11. 4 Hereby accepted. 5 11. 6 12. 7 13. COPIES FURNISHED: Don Royston, Esquire Department of Health and Rehabilitative Services District III Building H 1000 Northeast 16th Avenue Gainesville, Florida 32609 John Blackford 3199 East Quail Court Inverness, Florida 32652 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact 8. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 25, 2010, the Amended Order of Penalty Assessment issued on April 16, 2010, the Order to Show Cause issued on December 17, 2010, and the Order Relinquishing Jurisdiction and Closing File issued on January 3, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the Order to Show Cause, and the Order Relinquishing Jurisdiction and Closing File served in Division of Workers’ Compensation Case No. 10-079-D7, and being otherwise fully advised in the premises, hereby finds that: 1. On March 25, 2010, the Department issued a Stop-Work Order and Order of Penalty Assessment to MATCHTECH, INC. 2. On March 29, 2010, the Stop-Work Order and Order of Penalty Assessment was served by certified mail on MATCHTECH, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 16, 2010, the Department issued an Amended Order of Penalty Assessment to MATCHTECH, INC. The Amended Order of Penalty Assessment assessed a total penalty of $17,613.20 against MATCHTECH, INC. 4. On April 22, 2010, the Amended Order of Penalty Assessment was served by certified mail on MATCHTECH, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On May 7, 2010, MATCHTECH, INC. filed a request for Administrative Review (“Petition”), requesting review of the Amended Order of Penalty Assessment. The petition for - administrative review was forwarded to the Division of Administrative Hearings on June 2, 2010, and the matter was assigned DOAH Case No. 10-3038. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On December 17, 2010, the Administrative Law Judge issued an Order to Show Cause requiring MATCHTECH, INC. to show cause why this action should not be relinquished to the agency for failure to appear at a scheduled deposition. A copy of the Order to Show Cause is attached hereto as “Exhibit D” and incorporated herein by reference. 7. On January 3, 2011, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit E” and incorporated herein by reference.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was unlawfully discriminated against on the basis of his race, when he was not hired by the Respondent for a vacant job position.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at tee hearing, the following findings of fact are made: On or about December 5, 1969, the Petitioner, Hugh G. Purkey became employed by the State of Florida, Department of Transportation. In 1984, Petitioner held the position of Engineer II, Area Engineer and was assigned to the North Dade Maintenance Yard (NDMY). In 1983, Petitioner executed a form which acknowledged he had received a complete copy of the DOT employee handbook. The acknowledgement specified that enployees are responsible to review the handbook in detail and to request any clarification needed from a supervisor. The handbook provided the following regarding job abandonnent: 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. On or about October 23, 1984, Petitioner filed a request for a medical leave of absence. This request was based upon Petitioner's pulmonary disorder which prevented him from performing his duties with the NDMY. Petitioner was to receive pay based upon his accrued annual and/or sick leave through Novenber 6, 1984, thereafter, he was to be on leave without pay for a period of four months. This leave request was approved by the Petitioner's supervisor, Clive Taylor. Mr. Taylor was the only supervisor or employee at the NDMY who was authorized to grant a leave of absence for Petitioner. On January 28, 1985, an extension of Petitioner's leave of absence was granted by Mr. Taylor. This extension authorized two additional months of leave and specified that Petitioner would return to work no later than May 6, 1985. Prior to the leave of absence described above, Petitioner had performed his duties with the NDMY in an above satisfactory manner. Prior to May 6, 1985, Petitioner had complied with the rules and regulations regarding requests for leave. Petitioner did not return to work on May 6, 1985. Petitioner did not file a request for a leave extension. Mr. Taylor did not approve an extension of the leave beyond May 6, 1985. Petitioner was absent without authorized leave on May 6, 7, and 8, 1985. On May 10, 1985, Mr. Taylor executed a form entitled "Resignation and Exit Interview Form." This form provided, in part: "Mr. Purkey is not available for signature" and "Mr. Purkey is pursuing regular disability retirement." Petitioner did not execute the form but was advised of its content by telephone. Sometime prior to April 30, 1985, Petitioner had applied for disability retirement benefits. That request was filed with the Department of Administration, Division of Retirement and was denied based upon a determination that Petitioner was not totally and permanently disabled from rendering useful and efficient service. When that determination was made, Petitioner elected to file for regular retirement since he had accrued over ten years with the State. Thereafter, Petitioner received retirement benefits which were granted and paid retroactively from February 1, 1985. On July 9, 1986, Petitioner received a physician's statement which provided: It is my professional opinion that this patient may return to work requiring no strenuous physical activity providing that the patient continue on his medication and return for regular checkups in any office. Upon receipt of the physician's statement, Petitioner contacted the NDMY to request that he be allowed to return to work. Petitioner was advised that he had been terminated from employment in May, 1985, based upon his failure to return to work following his leave of absence. On July 29, 1986, Petitioner wrote to John C. Gocdnight, Assistant Secretary of Transportation, and requested Mr. Goodnight's assistance to allow Petitioner to return to DOT. That letter admitted that Petitioner knew his position had been filled but claimed he had been on leave. Petitioner maintained that he was "much too young to retire." The letter failed to mention that Petitioner had already been receiving retirement benefits. Petitioner listed his address subsequent to November, 1984, as Dunnellon, Florida. There is no record in Petitioner's personnel file which confirms DOT sent, and Petitioner received, a notice of his termination from employment in May, 1985. Petitioner did not request a hearing to review that termination until January, 1989.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Administration enter a final order finding that the Petitioner, Hugh G. Purkey, abandoned his position and resigned from the Career Service. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 7th day of December, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. The first portion of paragraph 2 is accepted; the designation of his last actual day of employment is in error and is rejected as contrary to the weight of the evidence. The date indicated, January 20, 1984, was not his last day of actual employment. According to DOT exhibit 8 (the referenced citation) that date was the last date worked. Petitioner's last date of employment would have been calculated from May 5, 1985 (the last date of his authorized leave). With regard to paragraphs 3 and 4, it is accepted that Petitioner used his accrued sick and annual leave until they were exhausted. After the paid leave was used, Petitioner applied for and received, by filing the appropriate form, an authorized leave without pay. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as comment, argument, or recitation of testimony which does not constitute a finding of specific fact. Paragraph 11 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as contrary to the weight of the credible evidence. Paragraph 14 is rejected as vague and ambiguous. It is accepted that Petitioner filed his original leave request and that Ms. Sellers assisted him. Paragraph 15 is rejected as incomplete and contrary to the weight of the evidence. Paragraph 16 is accepted to the extent that it provides that clerks would assist persons who requested such assistance. The first three sentences of paragraph 17 are accepted; the balance of the paragraph is rejected as argument or contrary to the weight of the evidence. The first sentence of paragraph 18 is accepted. The remainder of the paragraph is rejected as irrelevant or unknown. DOT did not establish that the form was sent and received by Petitioner. Paragraph 19 is accepted. Paragraph 20 is rejected as a provision of law. The parties have not disputed that the notice is required. Paragraph 21 is accepted to the extent that DOT cannot prove that such notice was provided to Petitioner. Paragraph 22 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant since Petitioner did not request that his medical leave be continued as required by the rule. Paragraph 24 is rejected as irrelevant. Further, the authorization to return was not without limitation. Paragraph 25 is rejected as contrary to the weight of the credible evidence. Paragraph 26 is rejected as irrelevant. Paragraph 27 is rejected as irrelevant. With regard to the letter to Goodnight, Petitioner admitted in that letter that he knew his position had been filled. Paragraph 28 is rejected as irrelevant. Paragraph 29 is accepted but is irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as irrelevant or not covered by the record. With regard to paragraph 32, it is accepted that Petitioner's request for disability retirement was denied and that he ultimately elected to seek early retirement; otherwise, it is rejected as hearsay uncorroborated by direct evidence. Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant or contrary to the credible evidence. Paragraph 35 is rejected as irrelevant. Paragraph 36 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 37 is rejected as irrelevant. Paragraph 38 is rejected as comment, argument, or recitation of testimony. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the credible evidence. Petitioner's section described as "Analysis" has not been considered findings of fact. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY DOT: 1. Paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 24, and 25 are accepted. Paragraph 2 is rejected as Irrelevant. Paragraph 4 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted but is unnecessary. Paragraph 23 is rejected as unsupported by the record. DOT's section described as "Analysis" has not been considered findings of fact COPIES FURNISHED: Paul H. Field WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE Grove Plaza Building, 5th Floor 2900 Middle Street Miami, Florida 33133 Charles Gardner Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Acting Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issues in this case are whether Respondent, A-1 Block Corp., discriminated against Petitioner, Harold E. Ford, Jr., on the basis of his race and/or color and in retaliation, and, if so, what remedy should be ordered.
Findings Of Fact Respondent is a family-owned business that manufactures concrete products, ready-mix concrete, concrete block, and precast concrete. Mr. Freeman has been the president of Respondent for approximately 10 years. Petitioner is an African-American male who was employed by Respondent at two different times. Petitioner was hired to work in several different capacities which included: ready-mix driver; block driver; dump truck driver; and/or loader operator. Mr. Caviglia serves Respondent in a supervisory position, and Mr. Caviglia made the decision to hire Petitioner as a truck driver in December 2009 (first employment). Respondent hired Petitioner at $12.00 an hour. Respondent terminated Petitioner’s employment in July 2011 (first employment termination). Mr. Freeman described the circumstances under which Petitioner was terminated as: Petitioner failed to unhook some type of ladder or other apparatus at a self-loading dock, and drove off causing approximately $4,000 to $5,000 of damage to Respondent’s truck and/or the dock. Respondent was responsible for making the repairs. At the time of his first employment termination, Petitioner was making $13.00 an hour. Approximately five months later, in December 2011, Mr. Caviglia re-hired Petitioner to be a truck driver for Respondent. The other drivers employed by Respondent wanted Petitioner to return. Petitioner was hired at $13.00 an hour (second employment). At various times during Petitioner’s employment with Respondent, Petitioner inquired about becoming a “dispatcher” for Respondent. Mr. Freeman indicated to Petitioner that he (Mr. Freeman) would think about Petitioner’s dispatcher request. However, one of the requirements for Respondent’s dispatcher position was the availability to work on Saturdays. Mr. Freeman knew that Petitioner had a second job which required Petitioner to work on Saturdays. Since 2004, Petitioner worked part-time as an attendant at a local funeral home, which required Petitioner to work some Saturdays. Petitioner was paid $75 per funeral; however, he did not know how much he had been paid since his second employment termination. Petitioner did not have any pay-stubs to reflect how much he had been paid by the funeral home. Petitioner continues to work for the funeral home. In October 2013, Petitioner caused damage to tires on a truck belonging to Respondent. Respondent incurred a financial loss as a result of the damaged tires. Petitioner was terminated from his second employment with Respondent on November 20, 2013. Petitioner alleged and testified that Mr. Caviglia threatened Petitioner at various times during Respondent’s operational meetings.3/ Two other witnesses, Mr. Timmons and Mr. Sandy, testified that they did not observe Petitioner being threatened at these meetings. Petitioner alleged that he was retaliated against based on his race. Petitioner claimed that he was directed to wash a white man’s truck. Petitioner refused to wash the truck. Respondent requires its drivers to wash the trucks that they drive each day. However, there was no evidence of any retaliation against Petitioner when he did not wash the other man’s truck. Petitioner alleged he asked for raises when he thought it appropriate, and was refused. Mr. Freeman paid his employees the going rate, and it was established that Petitioner was being paid $14 an hour when he was terminated. Mr. Timmons, a former employee of Respondent, received the same rate of pay for working as a driver or as a dispatcher for Respondent. Petitioner’s resumé was admitted into evidence as Exhibit C. Petitioner created this resumé in 2011, and revised it one time to assist in the preparation for the hearing. The resumé does not accurately reflect Petitioner’s separate employment periods at Respondent, nor does it contain a two-week period of employment at another construction company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations DISMISSING the Petition for Relief filed by Mr. Ford. DONE AND ENTERED this 22nd day of December, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2014.
Findings Of Fact Petitioner, Marshall T. Hazlewood, was an employee of respondent, Department of Transportation (DOT), from April 12, 1972 until July 14, 1983 at the Pinetta Toll Plaza in Satellite Beach, Florida. He served in the positions of toll collector, shift supervisor and manager I at that facility. In April, 1983 Hazlewood advised his supervisor that he would retire in July, 1983. By this time, Hazlewood had accumulated annual leave in excess of 240 hours, as well as an undisclosed amount of compensatory time and sick leave. His supervisor asked him not to use his annual leave in excess of 240 hours until July, or just prior to his retirement, because of a shortage of other personnel services (OPS) money for that fiscal year. In other words, if Hazlewood used his leave in April, May or June, the supervisor would necessarily have to use current fiscal year OPS funds to hire a temporary replacement. Hazlewood acquiesced and continued to work until June without taking annual leave. On June 16, 1983 Hazlewood put in an annual leave slip requesting annual leave (except for July 4, a holiday, and his personal holiday) from June 27 through July 14, 1983, his retirement date. This brought his total annual leave down to 238.50 hours as of the close of July 14, his date of retirement. The leave slip was approved by his supervisor and forwarded to the bureau chief in Tallahassee. He also spoke by telephone with the coordinator for the Tampa section and the assistant bureau chief in Tallahassee concerning his retirement. Whether he told them of his plans to use annual leave the last few weeks of employment was not disclosed. In any event, no one questioned his leave slip. When he retired on July 14, 1983 Hazlewood received his normal pay plus compensation for unused sick leave. He also received a warrant in the amount of $1,005.68 which represented compensation for 238.50 hours of unused annual leave. Because the pay system at DOT is computerized, and not manually checked until several weeks later, Hazlewood received his final pay without a hitch. Later on, after a manual review of his file was made, it was learned that Hazlewood's final pay had been improperly computed. DOT requested a return of the warrant, and apparently reissued a second warrant which was $324 less than the first. That prompted the instant proceeding. According to Rule 22A-8.10(4)(c), Florida Administrative Code, promulgated by the Department of Administration (DOA), and which must be adhered to by DOT, an employee cannot be paid for leave after his "last official day of employment." An employee's last official day of employment is interpreted to mean when he is physically present on the job. The parties have stipulated that Hazlewood's last official day of employment was June 26, 1983, when he actually reported to work. The DOA also interprets the rule to prohibit the taking of annual leave in conjunction with an employee's separation from service. This includes the taking of such leave merely to use up sick leave or to bring one's total annual leave down to the maximum reimbursable amount of 240 hours. These interpretations were disseminated by DOT to all of its field offices, including the chief of toll facilities, as early as October, 1981, and are generally described on page 21 of the DOT Employee Handbook which Hazlewood had. They are also expressed in "Interpretation of Attendance and Leave Rules" issued by the DOA. After determining Hazlewood's last date of employment to be June 26, his balance of annual leave was properly reduced to 176 hours rather than 238.50 hours. This balance was arrived at by deducting those hours of leave improperly used during the pay period ending July 14, 1983, and for which he had already been paid, from the 240 maximum hours one can accumulate at date of retirement. The DOT accordingly reissued Hazlewood a check for 176 hours of unused leave, which was $324 less than the amount previously given to him. This was actually less than the amount DOT should have deducted, for it did not seek to recover excess payments during the two-week pay period ending June 30, 1983. Petitioner contends that because no one advised him that taking leave in the manner he did was improper, it is unfair to now penalize him for doing so. He also points out that his supervisor approved the leave slip and was the one who suggested he delay taking leave until July because of budgetary problems. He considers it morally wrong for DOT to treat him in the manner that it has. The DOT acknowledged that the leave slip was approved, but stated the supervisor was apparently unaware of existing Department policy. It contends that all non Tallahassee offices are periodically advised of personnel rules, and that the Hazlewood case was one of a few that sometimes occurs. After the Hazlewood error came to light, DOT issued another memorandum on September 1, 1983 to all personnel explaining the policy for leave time upon separation from service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Marshall T. Hazlewood to have reinstated $324 in payments for unused annual leave be DENIED. DONE and ENTERED this 8th day of March, 1984, 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 8th day of March, 1984. COPIES FURNISHED: Mr. Marshall T. Hazlewood 333 McLeod Drive Cocoa, Florida 32922 Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
