The Issue Whether Carl L. Brewer should be deemed to have abandoned his position and to have resigned from the Career Service on account of his absence from work on June 21, 22 and 25, 1986?
Findings Of Fact Since September 10, 1979, Carl L. Brewer has worked for the Department of Corrections at Apalachee Correctional Institution (ACI) in Sneads. On February 4, 1982, if not before, he was furnished a copy of the rules of the Florida Department of Corrections, Respondent's Exhibit No. 10, including Rule 33- 4.002(21), Florida Administrative Code, which he read. In June of 1986, petitioner Brewer worked as a correctional officer I. He was working in the east field on the morning of June 14, 1986, when he complained to the dormitory sergeant of pain in his left foot, and asked to be reassigned to the dormitory. Sergeant Scipper did reassign him to the dormitory but only till noon, when he was obliged to return to the field. The following morning Barbara Ann Brewer, who is married to petitioner's brother Walter, came by petitioner's house. Petitioner lives in Bonifay, Florida, two doors down hill from his brother and sister-in-law, who, unlike petitioner, have a telephone in their home. She found him sitting fully dressed in his uniform, except for his left shoe. His foot was swollen. He asked her to take him to the emergency room, but to call ACI first to say he would not be in. As Correctional Officer Supervisor II John J. Watts explained, it is important for correctional officers to get word to the shift supervisor before the shift starts so that a substitute can be procured. The shift which petitioner was scheduled to work on June 15, 1986, began at quarter of eight that morning. Mrs. Brewer telephoned ACI at 6:27 A.M. in Bonifay and Correctional Officer H. Bennett answered at 7:27 A.M. in Sneads. Petitioner's Exhibits Nos. 4 and 12. Bonifay is in the central time zone, on what one witness called "slow time," while Sneads is in the eastern time zone. She told Officer Bennett that petitioner would be unable to report for duty on account of his hurt leg, and Officer Bennett "advised [her] to tell Officer Brewer to bring in a doctor[']s slip." Petitioner's Exhibit No. 1. After the telephone call, Mrs. Brewer helped petitioner into her car. When they reached the emergency room at Doctors Memorial Hospital in Bonifay, no physician was there to see them, but somebody telephoned a Dr. Zafar, who prescribed something over the phone and gave Mr. Brewer an appointment at his office in Chipley for eleven o'clock the following morning. Mrs. Brewer took her brother-in-law home, then went to fetch the medicine. It was Sunday and the pharmacist met her at the pharmacy specially to fill the prescription. The next day, Monday the 17th, Dr. Zafar saw Mr. Brewer and sent him back to the hospital for x-rays, which Dr. Amin examined. As far as they could tell, nothing was broken, but the foot remained swollen and painful and Dr. Zafar admitted him to the hospital. Although Sunday and Monday had been days off, petitioner was scheduled to work again on Tuesday, June 18, 1986, from 7:45 A.M. to 4:15 P.M. At her brother-in-law's request, Mrs. Brewer telephoned ACI at 7:10 A.M. eastern time on June 18, 1986. Petitioner's Exhibit No. 12. She told shift supervisor Robert Franklin Weeks that Carl Brewer had been admitted to the hospital and would probably be there about a week. He told her to tell Officer Brewer to let ACI know when he would be back to work. In a contemporaneous memorandum, Officer Weeks wrote: stated was in hosp for approx 1 wk I told her to advise Brewer to contact the inst and let us know when he would be back to work. Petitioner's Exhibit No. 2. At hearing, Mr. Weeks testified that he told Mrs. Brewer that she was to tell Carl Brewer to telephone ACI that day from his hospital bed, but Mrs. Brewer denied this, and the weight of the evidence supports the view that Weeks did not specify that Brewer call that day. Mr. Weeks does not mention any deadline in the contemporaneous memorandum he wrote. Petitioner's Exhibit No. 2. The telephone conversation only lasted one minute, according to the telephone bill. Petitioner's Exhibit No. 12. There was a telephone in petitioner's hospital room. Petitioner had earlier asked his doctor when he would be able to go back to work, but the doctor had not named a date, answering that he should not return to work before the pain and swelling subsided. On June 19, 1986, Mr. Brewer received a letter from Blue Cross-Blue Shield of Florida, advising that his "stay in the hospital is CERTIFIED FOR 04 DAYS." Petitioner's Exhibit No. He took this to mean he might have to bear the expense of a longer hospital stay personally, and persuaded Dr. Zafar to discharge him. Brewer left the hospital at half past six on the evening of June 20, 1986. In agreeing to his patient's suggestion, Dr. Zafar stipulated that Mr. Brewer stay at home, keep his left foot elevated, and collect urine samples regularly. Mr. Brewer followed this regimen faithfully and did not leave home, except perhaps to go to the hospital for tests, until, with foot still swollen and painful, he set out on crutches to keep an appointment at Dr. Zafar's office at four o'clock on Friday afternoon, June 27, 1986. In the course of this visit, Dr. Zafar told Mr. Brewer he could not return to work before July 10, 1986. Meanwhile, however, Colonel Joel W. "Bill" Davis, chief correctional officer at ACI, had telephoned Doctors Memorial Hospital and learned of petitioner Brewer's discharge. Even though Colonel Davis viewed it as an exception to a clear policy, ACI authorized sick leave for the time Brewer spent in the hospital. In keeping with this alleged non-rule policy, however, ACI purported to deny Brewer sick leave for June 21 and 22, because he had not personally telephoned his supervisor (or designated representative) daily. Mr. Brewer was not scheduled to work on June 23 or 24, but ACI again purported to deny sick leave on June 25, and a letter dated the following day, advising that he was deemed to have abandoned his position, went out over the signature of Harold W. Bailey, as acting superintendent at ACI. Respondent's Exhibit No. 8. By the time petitioner learned he might be able to return to work on July 10, 1986, the business office at ACI had closed for the weekend. This was the reason he gave at hearing for not asking his sister-in-law to call ACI to relay the doctor's prognosis till Monday morning, even though Saturday and Sunday were not days off for him. She did call on his behalf on Monday, June 30, 1986, and tell the person who answered that Mr. Brewer planned to return to work on July 10, 1986. At no time was she told that petitioner needed to call himself or that he no longer had a job. On July 3, 1986, petitioner Brewer received and signed for the letter Assistant Superintendent Bailey had mailed on June 26, 1986. Mr. Brewer reported for work on July 10, 1986, nevertheless, and presented a certificate signed by Dr. Zafar indicating he had been under Dr. Zafar's care for "[p]ossible cellulitis" from June 15 to July 10, 1986 and certifying that Brewer was able to return to work on July 10, 1986. Petitioner's Exhibit No. 9. This certificate was received as evidence of its existence. To the extent it corroborates other evidence of petitioner's illness, like the letter Dr. Zafar wrote on November 14, 1986, Petitioner's Exhibit No. 10, it is hearsay; Dr. Zafar did not testify at hearing. But these exhibits supplement and explain independent evidence, mainly the testimony of other witnesses. The hospital record in evidence as petitioner's Exhibit No. 5 also reflects a diagnosis of cellulitis. Not uncommonly relatives of sick and injured ACI employees call in to report they will not be at work. In these instances, employees receive sick leave after the fact if they return to work with a doctor's excuse. On February 10, 1986, Mr. Brewer had been reprimanded for taking sick- leave said to be unauthorized, but he was never reprimanded for failure to call in personally, and had not otherwise been disciplined for unauthorized sick leave. Carl Brewer did not, in fact, abandon his position as a correctional officer at ACI. He fell ill and tried to take sick leave. The Department of Corrections authorized sick leave for part of the absence occasioned by his illness. To the extent departmental employees at ACI proposed to deny sick leave authorization for the remainder of the absence, they acted in violation of applicable personnel rules.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration rule that Carl L. Brewer has not abandoned his position as corrections officer I with the Department of Corrections, and has never lost his membership in the Career Service. That the Department of Administration rule that petitioner have twenty days in which to file a petition for a career service hearing to seek appropriate relief in the event the Department of Corrections fails voluntarily (a) to reinstate Carl L. Brewer as a Corrections Officer I; (b) to pay Carl L. Brewer all moneys he would have earned if he had not been deemed to have abandoned his position, less any moneys the Department of Corrections may have paid him because he was deemed to have abandoned his position;. and (c) to pay Carl Brewer for reasonable attorney's fees and costs incurred in this proceeding. DONE AND ORDERED this 8th day of January, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II 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 January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3259 Petitioner's proposed findings of facts Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 16, 17 and 19 through 35 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 3 has been adopted, in substance, insofar as material, except that only the left foot was affected, so it was only the left shoe that he could not put on. Petitioner's proposed finding of fact No. 11 has been adopted, in substance, except that he was sent for x-rays before being admitted to the hospital according to the testimony. Petitioner's proposed finding of fact No. 14 has been adopted, in substance, except that, although he should have been granted sick leave for the whole period, sick leave was not granted in fact (although required by law to be granted) for the entire period. Petitioner's proposed finding of fact No. 15 has been adopted, in substance. Whether or not officer Bennett's testimony in this regard is inherently incredible, it has not been credited. Petitioner's proposed finding of fact No. 18 has been adopted in substance insofar as material, except that it was not proven that he could not afford to stay in the hospital. Respondent's proposed findings of facts Nos. 1, 2, 3, 5, 6, 7, 8, 10, 11, 14, 18, 20 and 21 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 4 is immaterial except to the extent addressed in the recommended order. This is an abandonment case, not a career service suspension case, in which prior, progressive discipline might be pertinent (although petitioner may ultimately be obliged to initiate career service proceedings to obtain redress for his de facto suspension). With respect to none of the prior incidents, moreover, did the proof adduced in the present case establish violations of Rule 33-4.002(21), Florida Administrative Code. Respondent's proposed finding of fact No. 9 has been adopted, in substance, except for the third sentence, which is contrary to the weight of the evidence. Respondent's proposed findings of facts Nos. 12, 13, 15 and 16 have been adopted, in substance, with the qualification that although "carried on unauthorized leave," petitioner was entitled to sick leave, as far as this record shows. Respondent's proposed finding of fact No. 17 has been adopted, in substance, except that three, not four, days are relied on in the letter. With respect to respondent's proposed finding of fact No. 19, petitioner signed for the letter on July 3, 1986. COPIES FURNISHED: Marva A. Davis Post Office Drawer 551 Ouincy, Florida 32351 Louis A. Vargas 1311 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether Respondent discriminated against Petitioner in her employment based on her gender or disability, in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Respondent had employed Petitioner as a Toll Equipment Technician/OMST III for over ten years at the time of her termination. Her responsibilities included maintaining the equipment at the toll plaza, troubleshooting shop work, traveling to various work sites, and communicating with the public. On November 17, 1998, while working in the vicinity of traffic at a toll plaza, Respondent was struck by a passing truck. Petitioner went to a clinic where her injuries were examined. When Petitioner returned to work about three days after the accident, she performed light duty for three days. After three days, Petitioner worked without restrictions and performed her full job functions. On January 16, 2000, Petitioner reinjured her back while attempting to lift a monitor over her head while at work. On March 28, 2000, Dr. Hubert Aronson performed a surgery on Petitioner for a herniated disc. On June 6, 2000, Dr. Aronson determined that Petitioner had reached maximum medical improvement, and he rated her with a permanent partial physical impairment of seven percent. He ordered a functional assessment test to identify any work restrictions, prior to releasing her for work. On June 22, 2000, staff of HealthSouth Rehabilitation Hospital conducted a functional assessment test on Petitioner. Based on the assessment, by note dated July 31, 2000, Dr. Aronson returned Petitioner to regular work duties, without restrictions, as of August 1, 2000. Unsure that Petitioner's physician understood the physical demands of Petitioner's job, Mr. Ayala ordered that the Division of Risk Management obtain another functional assessment of Petitioner. By report dated August 18, 2000, Options Plus noted that it had documented the demands of Petitioner's work and presented this material to Dr. Aronson, who again released Petitioner to return to her regular job. Although Mr. Ayala was doubtful of her ability to perform her regular job duties, Petitioner performed her work until Christmas 2000, when she went on leave. While on leave, Petitioner reinjured her back. Petitioner called in sick on January 7, 2001, and informed Mr. Ayala that her back was hurting. A workers' compensation representative called Petitioner and suggested that she visit Dr. Bernard Chapnick, who examined Petitioner on January 9, 2001. Dr. Chapnick restricted Petitioner to light duty and stated that she was not to work, if no light duty were available. Dr. Chapnick made a follow-up appointment for Petitioner on January 16, 2001. When Petitioner returned to work and gave Mr. Ayala the doctor's note, he responded that he had no light duty. He made an imaginary swing with a golf club, implying that Petitioner had injured her back while playing golf. Respondent then placed Petitioner on unpaid medical leave, and Mr. Ayala informed Petitioner that she would be required to resume her regular duties on April 23, 2001. On April 23, 2001, Dr. Aronson released Petitioner for work, but still on light duty. When Petitioner returned to work seeking light duty, Mr. Ayala informed her again that none was available. He offered her another period of unpaid medical leave, but Petitioner declined the offer. By letter dated May 10, 2001, Respondent informed Petitioner that it intended to dismiss her, effective no sooner than ten days from the date of the letter. The reason for dismissal, as stated in the letter, is Petitioner's inability to perform her duties and absence without leave for three or more workdays. Following a Predetermination Conference, by letter dated June 27, 2001, Respondent advised Petitioner that she was terminated, effective June 29, 2001, due to her inability to perform the duties of her position and absence without leave for three or more workdays. Petitioner's complaint that a disabled male coworker received preferential treatment is groundless. At all material times, he was medically cleared to lift up to 50 pounds, which was considerably more than was permitted by Petitioner's light duty.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of October, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2003. 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 Roselisa Cocalis 15471 Southwest 110th Terrace Miami, Florida 33196 J. Ann Cowles Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner, Ms. Coda, began working for the Council as a project counselor in August, 1989, dealing with AFDC referrals. In June, 1990, she was also assigned unemployed parents cases in the Council's Dade City office. In February, 1991, she started experiencing personal problems. Her marriage of 33 years was in trouble and this affected her. She immediately sought medical help. She had a young daughter, who was getting married, but Petitioner was not in good health. She had high blood pressure and was 50 pounds overweight. Her doctor put her on a diet and an exercise regimen which she carried over to her work. In June, 1991, F. Shaheen left her position with the Council as a counselor in New Port Richey and recommended to Petitioner that she apply for the vacated position there because it would have been much closer to her home. Petitioner did apply but was told by her supervisor, Mr. Steinberg, that she would still have to handle her unemployed parent clients in Dade City if she got the assignment. This would not have helped her, so she withdrew her request. In July, 1991, Petitioner came to work one day and found Mr. Steinberg and others going through her records. She was thereafter given a reprimand and a three day suspension for poor records, which she accepted. This was stressful for her because she had never been reprimanded before. In late July, 1991, she went to see her doctor because of a gall bladder attack. The doctor recommended she have surgery to remove it during which he would also do a laporoscopic examination. When she went in for the work-up, a nodule was found on her left lung. The doctor recommended it be removed because he thought it might be cancer. In October, 1991, Ms. Coda found out that her husband, with whom she was still having trouble, was living with another woman. When she went back to the doctor at that time, he said the nodule had enlarged and recommended immediate surgery. Ms. Coda had already planned a vacation for that time, but when her sister stated that she had arranged for Ms. Coda to get a second opinion on her condition at the Sloan-Kettering Cancer Center in New York, Ms. Coda took her vacation leave and went there. Before leaving, she told Mr. Steinberg where she was going and he questioned her need for a second opinion. Nonetheless, on January 8, 1992, Ms. Coda, who had decided to have the recommended surgery, advised her supervisor that the operation was scheduled for shortly thereafter, but before it could be done, on January 17, 1992, she was advised that her insurance would not cover the cost of the operation if done in New York. She immediately contacted her office and told them what was happening. She said she was coming back to the local area and was waiting for the airline to get her a seat for her return, and advised the staff that she would be back as soon as she could. Notwithstanding, on January 13, 1992, Mr. Steinberg, by letter, advised her that he was aware she had not had the surgery, complained that she had not contacted him for 10 days or provided the requested physician's statement to support her absence, and further advised that if she did not contact him regarding her intentions as to work, he would terminate her for absence without leave. She returned to work on January 20, 1992 Ms. Coda also received a memorandum from Mr. Steinberg, dated January 24, 1992, advising her of his receipt of reports of her substandard performance, directing her to return to work immediately, pending her surgery, and, in addition, outlining the specific tasks upon which he wanted her to concentrate. When she got back to work, she was told not to deal with clients and was counselled by both Mr. Steinberg and the Council Executive Director, Mr. Burlingame, repeatedly, about her failure to communicate with the office. Mr. Burlingame recognized she was under stress but nonetheless threatened her with dismissal which would result in her losing her health insurance coverage. Mr. Burlingame told her to get her health problems resolved and the operation scheduled, but also advised her she was not to handle clients. Ms. Coda accepted this because she believed that if she fought the reprimand she would be discharged. The operation was set for February 10, 1992. When she contacted her physician and told him what was going on, the medications for stress were increased. Nevertheless, Mr. Steinberg showed her no sympathy. On February 1, 1992, Ms. Coda received a reprimand for previous misconduct which allegedly occurred in January. She thereafter submitted a letter from her doctor which indicated she would be out of work until at least the end of April. Ms. Coda left the hospital after her surgery on February 18, 1992 and went home in the care of a housekeeper and nurse. The extent of her surgery, which left her with 42 stitches on her left back, made it difficult for her to do much because she is left handed. She was also given extra pain medications due to a rib which was broken during the operation. She was not required to undergo either radiation or chemotherapy because her cancer was rated as stage one. She does not know the current status of her health because, since she has been discharged, she cannot afford to go in for the checkups. She was able to drive when she came back to work, however, and she could write by hand, but her arm got tired if she had to write more than usual. She could use the phone and could interview clients. During the third week of March, 1992, even though Ms. Coda had submitted a letter from her doctor indicating she should be off work until April, she was called by Mr. Steinberg and asked to come back to work early because the other counselor had to take off for elective surgery. Her primary doctor did not want her to go back to work and she explained her limitations to Mr. Steinberg who replied that in that case she would have to be replaced. Because she had a lot of surgery follow-up appointments to be met and needed her health insurance coverage, she got another doctor to give her a limited work release conditioned upon her being placed in an area where there would be no smoking, no dust, no chemicals, and, though not specifically stated therein, for no more than six hours per day. Ms. Coda went back to work on April 22, 1992. She was put into a retraining program but she considers it to have been more an update of procedures implemented during the period of her absence. She does not consider it to have been retraining because of poor performance. Evidence to the contrary, from Mr. Burlingame and her coworkers is more persuasive, however. After about two weeks back on the job, for reasons unknown to her, Ms. Coda's office was moved from the front of the building to the rear where, she contends, all the smoking was done. As she relates it, the smokers kept the rear door to the outside open so they could hear the phone if it rang, and she asserts there was someone outside the door smoking seven or eight times a day. Others said she was moved because of her loudness. Ms. Coda was in the office for four weeks after her surgery. During that time, she kept her door closed because of the smoke which would be blown back into the building through the open back door. Her requests to have the back door to the outside kept closed were refused and this added stress. In addition, she was required to commute between the office in New Port Richey and the office in Dade City to manage the unemployed parent program. These allegations of stress and working conditions are confirmed by the testimony of Mr. Rivera, her cousin by marriage, and Ms. Gonzalez, an employee of the Department of Labor and Employment Security who was aware of the situation. Ms. Coda claims that throughout the time she worked for the Council, she was never advised of any client complaints against her, but, eventually, was fired by Mr. Burlingame who used as a reason her poor performance. He told her he had received complaints of her lack of empathy toward clients. She denies this and claims to be very empathic. She believes her dismissal was a culmination of the harassment she had received from Mr. Burlingame. He had told her he wanted to be in first place in a case competition, but it was impossible to achieve this within the three weeks available. She also claims he was unfriendly toward her and would not speak to her, though he was quite friendly to others. In substance, she claims, her firing was due to her medical problems and the fact that they would add to the cost of health insurance paid by the Council. Mr. Burlingame places a somewhat different perspective on Petitioner's story. As he relates it, Petitioner was hired to work with extremely disadvantaged clients who experience many barriers to employment. She was to evaluate the clients to select the best program for them and then to work with the clients to see they successfully completed the program and went to work. The New Port Richey office case load is from one hundred twenty to one hundred sixty clients per counselor. The Dade City case load is much smaller, with each counselor managing from twenty to fifty or sixty clients. Petitioner worked, primarily, in the Dade City office with one other counselor, Ms. Phelps, and a receptionist, marketing representative and office manager. Mr. Steinberg was the operations supervisor physically located in the New Port Richey office, but he filled in as a counselor in the Dade City office in the absence of Ms. Phelps. The criteria for employment as a counselor with the Council includes a four year degree in psychology or social work and two years experience. Petitioner did not meet these criteria, but she was hired because she was what they could get for the salary they paid. The salary levels for counselors are now much higher and they are able to attract better qualified people. Mr. Burlingame made the final decision to terminate Petitioner based on Mr. Steinberg's recommendation for dismissal. When Burlingame received this recommendation, he called Petitioner in to his office in New Port Richey, on June 30, 1992, to hear her side of the story. During their conversation, he told Petitioner that some clients had expressed concern about working with her and he asked her to explain. In response she became hostile and defensive, and it became clear to him that she was out of control. At that point he terminated her employment. By this time, Petitioner had received several prior reprimands and Mr. Burlingame was concerned that she was not keeping up the required documentation which supports the Council's expenditure of federal funds. She had trouble following rules and was repeatedly counselled about doing audit ready work. It was clear she did not develop a clear plan for client direction. Much of this was evident long before she was ever diagnosed with cancer and had nothing to do with her absences on that account. Mr. Burlingame's agency follows the state's anti-harassment policy. He supports treating employees and clients with dignity and respect. The policy made clear an alternate avenue for voicing complaints by employees, but Ms. Coda never filed any complaint with him or the alternate. By the same token, he was not aware of any smoking problems at the Dade City office, and he has no knowledge of any smoking inside the building after promulgation of the Council's smoking policy. Employees smoked outside the building and he believes that even if the door was left open for phone purposed, the building dynamics would tend to take the smoke out from a building rather than into it. In any case, neither Petitioner nor anyone else ever complained to him about smoke conditions in the office. Petitioner did not discuss with Mr. Burlingame that she was going away for cancer treatment. Her leave request indicated she was making a family visit, (but this was before Petitioner's sister called with the appointment in New York). He did not know she had cancer before she left. The Council has a health plan for which it pays the premium for the employee and twenty-five percent of the premium for the family. It does not get into the approval of bills paid by the insurance carrier and Mr. Burlingame knew nothing of her condition. The second opinion she sought and the surgery she had were referred by the primary care physician. Mr. Burlingame was not a part of the decision making process in denying her surgery in New York, nor was the Council. Because of the terms of the insurance policy the Council had, Petitioner's surgery would have had no impact on the premium the Council paid in the future, and Mr. Burlingame was not concerned about the potential for increased premiums. The Council imposes a six month probationary period on new employees to give them the opportunity to become competent in doing their work consistent with federal guidelines. It was only when Mr. Burlingame felt that Petitioner had crossed the line from merely incompetent to potentially dangerous to the development of the clients that he determined to terminate her employment. Several clients were seen to be crying when they left the Petitioner, and some complained to him about the way they were treated by her. Some said they would drop out of the program rather than work with her. This is inconsistent with the thrust of the program and not good for the rating process. In addition, Petitioner allegedly did not return from leave when required. Mr. Burlingame received a memorandum from Mr. Steinberg that Petitioner had not returned and he didn't know when she would return. On January 7, 1992, Mr. Burlingame was advised by Mr. Steinberg that Petitioner would return on February 10, 1992. In reality, she came back to work on January 20, 1992 without having had her surgery. At that time, management was quite concerned about the program. January is the start of a new semester in the various tech schools and it is imperative that students be lined up for entry. All this work was supposed to have been done before Petitioner left on vacation. However, while she was gone, clients came in to check on their paperwork, and when her files were examined, they were found to be in such disarray no one could figure out what was going on. This was the second time Petitioner's files were found to be unsatisfactory while she was gone. As a result, when Ms. Coda came back to work in January, Mr. Burlingame felt it imperative she not deal with clients but, instead, work with her files to make them acceptable, especially in light of the fact she was due to have surgery and would be out for two months thereafter. She was not terminated at that time. However, after her surgery, when she was called to see if she could come back somewhat sooner than the doctor's predicted April 21 date, she said she would not be back until May, although, as was noted previously, she actually came back to work on April 22. When that was reported to him, he directed Mr. Steinberg to give her retraining in procedures upon her return. The first three items of that retraining were elementary procedures. Only the fourth segment consisted of updating. For training purposes, Mr. Burlingame equated her with a new employee who needed training in the basics of her job. Joellyn Chancey is administrative coordinator at the Council and supervises three sections, including management information. This section tracks the paperwork of the individual counselors. She found a lot of mistakes in Petitioner's paperwork which required it to be sent back for re- accomplishment - more so than with the other counselors. Ms. Chancey could cover for Petitioner on the more routine matters. It was the more complex matters which had to be returned. In her opinion, Petitioner was the worst counselor as far as paperwork was concerned. All counselors use the same coding and Petitioner would often leave off the required codes, omit required steps, and the like. When Petitioner came back to work after her surgery, she was to be retrained. There were few changes made during her absence and the training administered was mostly matters which had not changed. Most of the matters Petitioner had to do were routine and not specific to her. They consisted of matters which Petitioner should have learned over time but still got wrong on a regular basis. In addition, Petitioner had a relatively small case load compared to other counselors, managing approximately thirty cases as compared to between one hundred fifty or more for the others in the New Port Richey office. Mary Miller was a coworker of Petitioner, and while she did not work directly with her, observed her from time to time, and periodically took over Petitioner's clients when Petitioner was gone. The first time she did this, Ms. Miller found a lot of clients were not being called in in a timely manner, so she did what had to be done to bring Petitioner's cases current. On the second occasion that Miller worked with Petitioner's files, she found that all the files she had updated on her first substitution had been untouched since that time. The files were not updated as required, which could result in clients missing out on services and their income being cut off. On none of the conversations Ms. Miller had with Petitioner did Petitioner ever mention how her cancer surgery had affected her work nor did she complain about smoke in the office. In fact, Ms. Miller never saw any employees smoking in the Dade City office. She, too, has just returned from an extensive medical problem, and at no time was she ever harassed because of it or given any indication Council officials were concerned about the cost of her treatment. Agnes Phelps, a smoker, worked with Petitioner at the Dade City office, and before the nonsmoking policy came into effect, smoked in the office. After the policy was promulgated, however, neither she nor anyone else smoked inside the building and she could not detect any odor of smoke inside the building. By the same token, she cannot recall Petitioner as having ever complained about the smoke. Ms. Phelps has heard and observed Petitioner counseling clients. She found Petitioner to be somewhat loud in speech and there have been times when Petitioner wouldn't see clients without an appointment and would not try to accommodate them. Her tone of voice was "off-putting" at times and gave the impression she didn't want to be bothered. As a result, several clients determined not to deal with Petitioner and Miller took them over. As to the clients she took over from Petitioner, Ms. Miller was concerned about the non-positive termination rate, (those who did not graduate and go to work), which seemed to be a larger percentage of Petitioner's client load than with other counselors. Much of this, she believes, was due to a lack of strong relationship between the client and the Petitioner. In addition, it was impossible to track down a lot of Petitioner's clients. All this had an adverse effect on programs and clients. According to Harriet Chambers, the office manager for the Dade City office, the move of Petitioner's office was prompted by Petitioner's loudness which made it advisable to move her from the front of the building to the back. The move, decided upon by both Steinberg and Ms. Chambers, did not result in a complaint by Petitioner. Her only expressed concern was with furniture and she never requested an accommodation due to her physical condition. Ms. Chambers also had the opportunity to observe Petitioner's interaction with clients. Petitioner's voice was high pitched and clients would come out of her office either angry or in tears. Often Petitioner would decline to see clients without an appointment- a practice contrary to the Council's policy to treat clients with dignity. Petitioner would also characterize clients as dead beats, lazy, back stabbers, no good, and the like in dealings with other agencies. This, too is not appropriate. When Petitioner left for New York, she told Ms. Chambers she was going to see a doctor for a second opinion, but the office had trouble finding out when she would be coming back. Petitioner did not return on time, and failed to meet with clients with appointments who came in as scheduled. During 1992 Melissa G. Perry was a client of Petitioner to whom she went with problems relating to day care and the like. Ms. Perry expected Council employees to help her get a job, give her financial advice, and raise her self esteem. This did not happen, however. On one occasion, she had a complaint about the manager of her day care facility and called on Petitioner for assistance. Petitioner agreed to see her if she would hurry over. When Ms. Perry explained the problem, Petitioner dismissed it saying it was not her problem. As a result, when Ms. Perry had other problems, she didn't want to talk to Petitioner because Petitioner showed no compassion or understanding. In addition, according to Ms. Perry, Petitioner was loud and cold and gave the impression she didn't care about her. This hurt Ms. Perry's feelings and lowered her self esteem. The evidence, therefore, indicates Petitioner was discharged because she was rude, unprofessional and uncaring in her treatment of her clients. Her discharge had nothing to do with her physical condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for Relief filed in this matter by Anna de la Rosa-Coda, against the Private Industry Council of Pasco County, Inc. be dismissed. RECOMMENDED this 6th day of January, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of January, 1995. COPIES FURNISHED: Anna de la Rosa-Coda 7484 Canterbury Street Spring Hill, Florida 34606 Alfred W. Torrence, Jr., Esquire Thornton, Torrence & Gonzalez, P.A. 6645 Ridge Road Port Richey, Florida 34668 Sharon Moultry Clerk Commission on Human Relations John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
The Issue Whether Glen Markee can return to suitable gainful employment without further training and education.
Findings Of Fact Glen Markee, a 44-year-old male, was employed as a roofer by Sam Damm Roofing, Inc. in Port Richey, commencing in November 1992. Mr. Markee’s duties included lifting bundles of shingles weighing up to 90 pounds, tearing off roofing, and lifting tar kits weighing 100 pounds. On April 6, 1999, he sustained a right shoulder and cervical injury while lifting shingles and ripping out roof. The accident was accepted as compensable. Mr. Markee received medical treatment, and was eventually referred to Dr. Harold Colbassani, a neurosurgeon. Following an MRI, Dr. Colbassani diagnosed a right-sided disc herniation. Due to Mr. Markee’s apprehensions about surgery, a conservative course of treatment was attempted, including epidural injections and physical therapy. The conservative treatment proved ineffective, and Mr. Markee underwent a cervical diskectomy and fusion on January 27, 2000. Dr. Colbassani certified Mr. Markee at maximum medical improvement on July 5, 2000, with an impairment rating of seven percent. His restrictions include no lifting over 50 pounds, occasional lifting of 21 to 50 pounds, no repetitive bending, crouching, or stooping, and no reaching above shoulder level. After being certified at maximum medical improvement, Mr. Markee sought further treatment from a pain management physician, starting in October 2000 and continuing to the time of the hearing. Petitioner claims that this continuing treatment indicates that Mr. Markee has not reached maximum medical improvement and thus that his application for re- employment services was premature. Glen Ellis, a vocational consultant with Respondent and an expert in the field of vocational rehabilitation, evaluation and training, testified that Mr. Markee’s seeking pain relief would not necessarily mean that he had not reached maximum medical improvement for purposes of retraining. Mr. Ellis testified that if an employee is medically stable and in need of no further active treatment for the injury itself, the Division may go forward with a retraining program. Examples of medical instability cited by Mr. Ellis were the need for further surgery, incapacitation for significant periods of time, or taking medications which prevent the employee from driving or attending class. None of these problems applied to Mr. Markee’s seeking treatment for his chronic pain. Thus, Mr. Markee was medically stable for purposes of retraining. Mr. Markee did not return to work after his injury. He never formally approached Sam Damm Roofing about coming back to work, though he did have an informal conversation with the owner of the company, Sam Damm. Mr. Damm told Mr. Markee that he had no work for him consistent with his medical limitations. Mr. Markee is a high school graduate. His prior work experience was almost exclusively as a roofer. He has also done some carpentry and briefly worked as a factory laborer. Section 440.491, Florida Statutes, creates the re- employment services program and authorizes all recommended programs and expenditures to injured employees. The ultimate goal of that statute in regard to an injured worker is to return the worker to suitable gainful employment. "Suitable gainful employment" is defined to mean "employment or self-employment that is reasonably attainable in light of the employee's age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earnings at the time of injury." Section 440.491(1)(g), Florida Statutes. At the time the Division approved Mr. Markee for retraining services, the general salary criterion established by rule was to restore the employee to at least 80 percent of his or her average weekly wages at the time of injury. Rule 38F-55.001(16), Florida Administrative Code (defined "underemployment" as employment in which the post-injury average weekly wage is less than 80 percent of his or her pre- injury average weekly wage). The Division has established a process to determine whether an individual merits re-employment services. The process begins with orientation. The employee is given a DWC- 23, which is the application for re-employment services. The employee is requested to sign the DWC-23 and to have the employer sign a section of the form that says it has no job available either modified or accommodated for the employee at this time. Shortly after orientation, the Division requests medical records from the carrier to determine the employee's restrictions. Once all the paperwork is received, one of the Division nurses reviews the medical records from the claimant's physician, the maximum medical improvement date, and permanent restrictions, work history, and education. The Division performs a transferable skills analysis, evaluating the claimant's educational background, hobbies, and interests to determine the best way to return the injured employee to work. In the effort to return the employee to suitable gainful employment, the Division considers three options. First, the Division determines whether there are any direct placement options for the employee with another employer. If this is not feasible, the next option is on-the-job training. If that is not a viable choice, the file goes to an independent evaluator to determine what, if any, retraining options are available to the employee. Once an injured worker is approved for retraining and education, the insurance carrier is obligated to pay temporary total rehabilitation benefits for at least 26 weeks, with an option to provide an additional 26 weeks for a maximum of 52 weeks of benefits while the injured employee is in retraining. Rehabilitation temporary total disability benefits are calculated by taking 66 2/3 percent of the claimant's average weekly wages 13 weeks prior to the claimant's date of accident. Mr. Markee followed the prescribed orientation steps with Mr. Ellis of the Division. Mr. Ellis then referred him to Nancy Drwal, a vocational evaluator who was accepted as an expert in vocational rehabilitation, training and evaluation. Mr. Ellis provided Ms. Drwal with background information describing Mr. Markee's accident, work history, medical restrictions and other relevant medical information. Ms. Drwal met with Mr. Markee on March 9, 2001, and gave Mr. Markee six tests over the course of five hours. The tests were designed to assess his intellectual, achievement, and aptitude levels. Among the tests Ms. Drwal administered was a transferable skills analysis to identify jobs that would be compatible with Mr. Markee's work history, education, capabilities, and functional limitations. This analysis revealed no transferable occupations for Mr. Markee. Ms. Drwal continued to search for some appropriate occupation short of retraining, because Mr. Markee was anxious to work and hesitant to enter a training program. Ms. Drwal testified that Mr. Markee's reluctance to enter a training program was not unusual for a person who has been out of school for 20 years and is not academically inclined. Despite the results of the transferable skills analysis, Ms. Drwal looked at the local markets for an appropriate job for Mr. Markee. Mr. Markee expressed an interest in locksmithing. Ms. Drwal contacted every locksmith in Pasco County, but could find none that were hiring or interested in on-the-job training for Mr. Markee. Ms. Drwal looked into security guard positions, because that occupation easily accommodates physical restrictions, but could not find a position close to Mr. Markee's average weekly wage of $530.65 per week, or $14.26 per hour. The security guard openings paid between $5.75 and $7.00 per hour, far short of 80 percent of Mr. Markee's pre-injury average weekly wage. Mr. Markee expressed an interest in working with animals. Ms. Drwal looked into positions with zoos and animal sanctuaries. These employers either had no positions, had experience requirements that Mr. Markee could not meet, or paid significantly less than his pre-injury average weekly wage. Ms. Drwal concluded that Mr. Markee would require retraining. She first suggested computer training, but upon investigation Mr. Markee found the scholastic requirements overwhelming. Ms. Drwal then suggested medical assistant school as more within the range of Mr. Markee's academic abilities and interests. Mr. Markee investigated the program and told Ms. Drwal that he thought he could do it. Ms. Drwal conducted a labor market survey to make sure there would be medical assistant jobs in the local market when Mr. Markee completed his training. In a labor market survey, Ms. Drwal contacts employers to ascertain that positions are available at the time of the survey, or that the employer has hired within the past six months and anticipates hiring again in the next six months. Ms. Drwal contacted five employers and determined that there would be jobs available and that the average starting salary was $10 per hour, ranging as high as $12 per hour. She determined that the job availability and salary made this an acceptable training program for Mr. Markee. Ms. Drwal determined that the duties of a medical assistant fell within Mr. Markee's medical restrictions. Medical assistants perform patient preparation, take vital signs, weigh patients, draw blood, and enter some patient information into the office computer. The job does not involve lifting. Ms. Drwal determined that Mr. Markee was a "very motivated" person and would be able to complete the program. The medical assistant school is not academically intense. The student must learn medical terminology, but the program lasts only 31 weeks and involves a hands-on internship at a doctor's office. Mr. Markee was approved for retraining in the medical assistant program at the Central Florida Institute in Palm Harbor. He commenced the program in April 2001. He has been a straight "A" student and at the time of the hearing was completing a 35-hour per week internship at the New Port Richey Medical Center. Based on Mr. Markee's transferable skills analysis, previous work history, previous educational background, and the results of testing done by the independent evaluator, the best way to return him to suitable gainful employment is through retraining. Petitioner failed to show that retraining Mr. Markee through the medical assistant program will not return him to suitable gainful employment. The record gives no indication that Petitioner ever informed the Division indicating whether it had suitable employment within Mr. Markee's restrictions. Mr. Markee's restrictions prevent him from returning to the occupation of a roofer. Mr. Markee appeared to have the capability to obtain a job. However, the Division's goal, as mandated by statute, is to assist him to obtain employment at or near his pre- injury average weekly earnings of $530.65.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered denying the relief requested by Petitioner. DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida. __________________________________ LAWRENCE P. STEVENSON 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 27th day of December, 2001. COPIES FURNISHED: Janet Poluse, Esquire Matusek, McKnight, Poluse and Cangro, P.A. Post Office Box 7729 St. Petersburg, Florida 33734-7729 Elana Jones, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 John H. Thompson, IV, Esquire John H. Thompson, IV, P.A. Post Office Box 13188 St. Petersburg, Florida 33733-3188 Mary B. Hooks, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Elizabeth Teegen, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
The Issue Whether Petitioner was discriminated against in employment by Tampa General Hospital by reason of Petitioner's age, national origin, or in retaliation because Petitioner had filed a complaint with EEOC against a former employer.
Findings Of Fact Petitioner was employed by Respondent on February 15, 1984, as a Pharmacy Technician assigned to the 8 a.m. to 4:30 p.m. shift (Exhibit 12). At this time Petitioner was also working at University Community Hospital and attending classes at the University of South Florida. In his application for this position, (Exhibit 8) Petitioner indicated he desired to work the night shift. However, Respondent does not hire employees for a particular shift and Petitioner accepted employment on the day shift. On May 21, 1984, Petitioner completed the Pharmacy Technician Training Program at Tampa General Hospital and was awarded a Certificate showing such completion (Exhibit 7). Petitioner was unable to work his assigned 40 hours per week with his other job and school and on October 5, 1984, he was transferred from permanent full-time (40 hours per week) to permanent part time (20 hours per week) at his request (Exhibit 13). Petitioner requested assignment to the night shift but there were few openings on the night shift as that popular shift was given to more senior (in length of service) employees. Petitioner was unable to be available 20 hours per week, and on November 6, 1984, he was transferred to a part-time position in the Pharmacy PRN pool. By letter dated November 21, 1984 (Exhibit 4), Petitioner resigned his position at Tampa General Hospital giving as a reason that he had not been assigned to the night shift and could not keep up with his schooling and other job working his assigned hours at Tampa General Hospital. During the latter stages of Petitioner's employment at Tampa General Hospital, his attendance at work became less frequent and he was considered somewhat unreliable by his supervisors and his coworkers. Although he was given a satisfactory performance rating in July, 1984 (Exhibit 5), shortly before his resignation, his supervisor was contemplating disciplinary action to improve Petitioner's performance or terminate his employment with Respondent. In late 1986, Petitioner suffered chest pains which he initially thought stemmed from heart problems. However, these were subsequently diagnosed as being of muscular skeletal origin (Exhibit 9). In February, 1987, Petitioner was dismissed from his position as Pharmacy Technician at University Community Hospital on allegations he was insubordinate. Petitioner called the office of the Director of Pharmacy at Tampa General Hospital, Monroe Mack, several times to inform him of his situation and tell him that he was trying to get some kind of worker's compensation. Petitioner requested Mack give him a letter of recommendation and provided a list of things he would like covered in the letter of recommendation (Exhibit 10). Mack accommodated Petitioner with a letter (Exhibit 3) dated July 13, 1987. Petitioner contacted Respondent's director of employee relations (Harris) to advise that he would like to return to work at Tampa General Hospital and to obtain Harris's assistance with Mack who had the authority to hire employees in the pharmacy department. On November 23, 1987, Petitioner submitted an application to Respondent requesting employment (Exhibit 6). In this application, he listed under "hours not willing to work" 7:30 a.m to 2:30 p.m. and indicated he was still pursuing his education. At Petitioner's request and with the help of Harris, a meeting was arranged with Mack in August, 1988. At this meeting Petitioner again iterated his desire to work the night shift and Mack told Petitioner that he would not rehire Petitioner as a pharmacy technician because his work had not been satisfactory when he earlier worked at Tampa General Hospital and his then co- workers and supervisors had recommended against his reemployment. Petitioner was born April 1, 1938, (Exhibit 6). Accordingly, when he was denied reemployment in 1988, he was 50 years old. The only evidence submitted, which in any way relates to age discrimination, is the list of pharmacy technician personnel showing their age, race and gender (Exhibit 1). This shows that in 1988 the oldest pharmacy technician at Respondent working as a technician was 41 years old with the average age of the 33 technicians listed around 30 years old. The list also shows that 28 of the 33 are females and 10 are black. No evidence was submitted indicating in any manner or implying that older applicants had applied for work at Tampa General Hospital as pharmacy technicians and had been turned down for employment for any reason. No pattern of such discrimination was shown, nor was any evidence submitted, even suggesting that such a pattern was extant at Tampa General Hospital. Nor was any evidence submitted that Petitioner was not rehired at Tampa General Hospital in retaliation for filing.a complaint with the Equal Employment Opportunities Commission against his former employer (presumably University Community Hospital).
Recommendation It is RECOMMENDED that the Petition for Relief from an unlawful employment practice filed by Yacob Morowati against Tampa General Hospital be DISMISSED. DONE and ENTERED this 23rd day of August, 1989, at Tallahassee, Florida. K. N. AYERS 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 23rd day of August, 1989. COPIES FURNISHED: Yacob Morowati P. O. Box 270489 Tampa, FL 33688 E. John Dinkel, III , Esquire P. O. Box 1531 Tampa, FL 33601 Joe Harris Post Office Box 1289 Tampa, FL 33601 Margaret A. Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 =================================================================
The Issue Whether Petitioner was subjected to age, marital status, and disability or perceived disability discrimination while employed by Respondent, in violation of Subsection 760.10(1)(a), Florida Statutes (2009).1 Whether Petitioner was subjected to retaliation while employed by Respondent, in violation of Subsection 760.10(7), Florida Statutes.
Findings Of Fact Petitioner, Deborah McRae, is a registered pharmacist, licensed in Florida and Georgia since January 25, 1978. Petitioner has been employed by Respondent, Kash N' Karry, d/b/a Sweetbay Supermarket (Sweetbay or Respondent), from January 2005 to the present. Petitioner is currently on an extended leave of absence, but remains employed by Respondent. Respondent is an employer under the Florida Civil Rights Act (FCRA) of 1992. Petitioner’s Employment at the Daniels Parkway Store From January 2005 until December 2008, Petitioner worked as an assistant pharmacy manager inside Sweetbay store located on Daniels Parkway in Fort Myers, Florida. Her job duties included filling and dispensing prescriptions, counseling customers, screening for drug interactions or patient allergies, communicating with physicians to clarify prescriptions, and contacting insurance companies when necessary. Although the Daniels Parkway pharmacy was relatively slow, Respondent never promised Petitioner that she would not be required to work at a high-volume store. In fact, during the time she was employed at the Daniels Parkway store, she covered shifts at higher-volume stores, including the North Fort Myers store, whose pharmacy had at least double the weekly volume of the Daniels Parkway store. Although upper management had not been informed of problems with Petitioner’s job performance at the Daniels Parkway store, the pharmacy manager and store management received some complaints from customers about Petitioner being rude and providing poor customer service. Store management handled these complaints informally by speaking directly to Petitioner about them. Petitioner’s pharmacy manager at the Daniels Parkway store was Patrick Fung (Fung). In addition to a few customer complaints to Fung, Petitioner would leave a lot of tasks for Fung to complete the following day and would create difficulties with respect to the pharmacy schedule. In February 2009, Respondent permanently closed the Daniels Parkway store. Earlier, in mid-January 2009, the company announced to the associates that the Daniels Parkway store would be closing. In December 2008, Petitioner took a medical leave of absence for back surgery. Although she mentioned that she was having back surgery, Petitioner did not inform anyone in Respondent's management that she had a permanent disability concerning her back or that she had any other disability. Respondent's management did not know Petitioner had, nor did it regard Petitioner as having, a permanent disability. Petitioner never asked for an accommodation for her back pain or any mental health disability. Indeed, Petitioner never submitted any documents to Respondent, stating that she had a disability or any type of mental health condition. Petitioner never told Respondent that she had a mental health condition. No one in Respondent's management knew or thought that Petitioner had a mental condition and never saw any documentation to that effect. Petitioner was still on a medical leave of absence in early February 2009, when the Daniels Parkway store closed. Employment and Promotion to Pharmacy Manager Position at Lehigh Acres In mid-January 2009, when the company announced the Daniels Parkway store closing, there were only two open pharmacy positions in the region: the assistant pharmacy manager position at the store in Lehigh Acres near Fort Myers, Florida, and the assistant pharmacy manager position in the store in Estero, Florida. The regional pharmacy business supervisor during the relevant time period was Diane Fagan (Fagan). Fagan made an effort to place Petitioner and Fung into the two open pharmacy positions. Fagan felt both Fung and Petitioner were good pharmacists and wished to retain them with Respondent. Because Fung was a pharmacy manager and actively on the payroll, he was given the option of accepting either of the two open assistant pharmacy manager positions or, alternatively, to accept a severance package. Fung voluntarily selected the Estero position, to become effective after the Daniels Parkway store closed. In doing so, Fung voluntarily accepted a demotion with a concomitant reduction in pay. It is undisputed that Fung was qualified for the Estero position, he was Petitioner’s supervisor at the time, and, therefore, it was reasonable that he be offered the position first. By allowing Fung to decide between the two positions, Fagan did not consider Petitioner’s or Fung’s age, marital status, or disability status. Petitioner failed to provide any evidence as to Fung’s age, marital status or disability status, and whether they differed from Petitioner’s. There is no evidence on this issue that demonstrated that any decisions made by Respondent regarding Petitioner’s employment were made because of age, her marital status, disability or the perception that she had a disability. After Fung selected the Estero position, Petitioner was offered the remaining assistant pharmacy manager position at the Lehigh Acres store, to become effective after the Daniels Parkway store closed, and when she returned from medical leave. At the time, Petitioner did not yet have a projected release date to return to work. Alternatively, she was offered a severance package. In late February 2009, the pharmacy manager at the Lehigh Acres store abruptly resigned her position. On March 5, 2009, the two positions were offered to Petitioner. The following day, Petitioner voluntarily accepted the position of pharmacy manager. This was a promotion for Petitioner, which came with an increase in salary and additional benefits. During these discussions, Petitioner was offered the option of either a 30-hour or 36-hour work week (the 36-hour week came with the pro rata increase in pay). Petitioner voluntarily selected the 30-hour work week. Petitioner expressed that a 30-hour work week would be a positive for her. Petitioner never informed Respondent that she could not go to the Lehigh Acres store or that working at the Lehigh Acres store, in any way, would or did affect her back condition or any other alleged disability she may have had. Petitioner never informed Respondent that she had a permanent disability of any kind. Petitioner claims that she told Fagan that “she does not do well under stress.” Assuming that to be true, that statement does not qualify as informing Respondent that she had a mental health disability, and Petitioner never asked for a reasonable accommodation for any mental condition or disability. She never filed a request in writing for reasonable accommodation. The discussions about the job transfer and promotion were communicated to Petitioner while she was out on leave for the back surgery. Petitioner never indicated that the phone calls made to her by Fagan were inappropriate or unwelcomed. To the extent Petitioner contends the Lehigh Acres store was stressful due to high volume, the evidence shows that the Lehigh Acres pharmacy, although busier than the Daniels Parkway store, was a low-volume pharmacy, in comparison to other pharmacies in the region. Petitioner started in her pharmacy manager position at the Lehigh Acres Pharmacy on March 15, 2009, after she had been released by her doctor to return to work without restrictions of any kind. The job duties of a pharmacy manager are substantially the same as the job duties of an assistant pharmacy manager, the position Petitioner held at the Daniels Parkway store. The primary additional duty was that Petitioner was charged with the duty of working out the schedule between her and the assistant pharmacist and has input as to the pharmacy technician’s work schedule. Petitioner’s assistant pharmacist at the Lehigh Acres store was Opal Gagliardo (Gagliardo). Petitioner presented no evidence as to Gagliardo’s age or disability status, but testimony showed that she was married. In addition, Eron Goffena worked as a pharmacy technician at the Lehigh Acres pharmacy on Mondays and Tuesdays. Shortly after Petitioner started at the Lehigh Acres store, Respondent started receiving customer complaints about her. These included complaints about disorganization, inaccurate and incomplete filling of prescriptions, failure to fill prescriptions in a timely manner, and talking on the phone while ignoring customers for extended periods of time. Some customers became so dissatisfied that they transferred their prescriptions to another store. The Lehigh Acres pharmacy was open six days per week and was closed on Sundays. Petitioner was scheduled to work three 10-hour shifts per week. When Petitioner started at the Lehigh Acres store, Gagliardo was scheduled to work two 10-hour shifts per week, and the other shift was covered by another rotating pharmacist. Soon thereafter, in March 2009, Gagliardo agreed to become full-time and, like Petitioner, worked three 10-hour shifts per week. Consistent with normal practice, Petitioner and Gagliardo worked together to agree to a mutually-acceptable schedule: two-day-on/two-day-off, with each having every other weekend off. However, Petitioner later decided she no longer wanted to work this schedule and sought to make changes to it. This gave rise to an ongoing disagreement between Petitioner and Gagliardo regarding the schedule, which was not resolved by the time Petitioner went out on her second leave of absence. In addition, Petitioner failed to complete many of her daily pharmacist duties. The testimony is credible that she failed to consistently fill the prescriptions that came in during her shift; instead, leaving them for the next shift’s pharmacist. Petitioner was disorganized and did not follow the proper workflow procedures. This resulted in customers’ prescriptions not being completed in a timely manner. Additionally, Petitioner did not answer the telephone often while she was working, failed to put up the stock that came in during her shift, left the pharmacy messy, and would not empty her garbage, leaving it overnight for the next pharmacist to do. Petitioner did not work well with her coworkers and, unlike other pharmacists, delegated problems and insurance issues to the pharmacy technicians, or left them for Gagliardo. On Saturday, March 21, 2009, Gagliardo wrote a note to Petitioner setting forth her concerns about her work and customer complaints, and how it was affecting Gagliardo’s working conditions. Gagliardo left the note next to the pharmacy computer for Petitioner to read during her next scheduled shift. When Fagan learned of customer complaints about Petitioner and issues regarding the timeliness of processing prescriptions, she asked her pharmacy specialist, Christine Stills (Stills), to visit the store to introduce the company’s pharmacy workflow program to Petitioner, in order to reduce the level of stress and improve customer service. On March 23, 2009, Stills, Anna Winters (Winters), and Petitioner met in Winters’ office to discuss the workflow procedures. In response, Petitioner indicated that she wanted additional technician hours to help with the workflow. Petitioner did not express or suggest that her desire for more technician hours was, in any way, due to, or a request for accommodation for any disability. Respondent has company-wide guidelines for determining the number of pharmacy technician hours that can be used in each store, based on the number of prescription filled by the store per week. The staffing at the Lehigh Acres pharmacy was consistent with these guidelines and was consistent with staffing before and after Petitioner worked there. Although Petitioner disagreed with the guidelines, Petitioner’s pharmacy technician hours actually exceeded the company guidelines. Pursuant to the guidelines, a pharmacy with Lehigh Acres’ volume was allotted six hours of technician help per week. During Petitioner’s tenure, the Lehigh Acres pharmacy was provided at least 13 hours of technician help. In addition, Petitioner had a trainee helping her on the cash register for at least two days. The Lehigh Acres pharmacy also was staffed similarly pursuant to the guidelines under the previous pharmacy manager, Anna Lowry. The customer volume (and number of technician hours) at the Lehigh Acres pharmacy has remained approximately the same since Petitioner went out on a second leave of absence. Following the March 23, 2009, meeting, Petitioner went back to the pharmacy and found the note Gagliardo had left by the computer. Petitioner returned to Stills and accused Gagliardo of “sabotaging” her. Petitioner also called Gagliardo at home that evening and was very belligerent, accusing Gagliardo of “sabotage” and stating that Gagliardo had “crucified her” and “nailed her to the cross.” On Friday, April 3, 2009, a meeting was held at the Lehigh Acres store between Petitioner, Fagan, Stills and Winters. This meeting was to be a fact-finding meeting to let Petitioner know her performance was not at the expected level, to discuss the customer complaints and concerns, and to get some feedback from Petitioner as to why this was happening. During this meeting, Petitioner was counseled with respect to the customer complaints about her. In response, Petitioner blamed Gagliardo for at least one of the complaints and again accused Gagliardo of “sabotaging” her. The only example Petitioner could provide of purported “sabotage” was that a box of paper clips she had placed on the pharmacy counter had been moved, and she believed that Gagliardo hid them (although the paper clips later were found in a drawer marked “pharmacy supplies”). Fagan asked Petitioner for other examples of “sabotage,” to which Petitioner pulled out a bundle of notes, which, she suggested may reflect additional examples, but Petitioner would not turn them over or allow anyone to read them. Petitioner also responded that the pharmacy manager duties were overwhelming. When asked for specifics, she could not provide any examples of duties she had as a pharmacy manager that were over and above what she previously had as the assistant pharmacy manager. Instead, Petitioner again requested that she needed more pharmacy technician hours. The pharmacy staffing guidelines were again explained to her, and her request was denied. Near the conclusion of the meeting, Fagan asked Petitioner if she had any questions or comments in response to what had been presented, but Petitioner did not offer any questions or comments. At no time during the meeting did Petitioner say anything about age or disability discrimination, or retaliation. At no time during the meeting was Petitioner ever told that her employment was being terminated, that she was being suspended or demoted, or that she was being subjected to a reduction in salary or benefits, or any other adverse employment action. Petitioner’s counseling had no tangible impact on terms, conditions, or privileges of her employment. Petitioner was never suspended, her employment was not terminated, and her salary and benefits were not reduced. Following the meeting, Petitioner went to the store pharmacy, gathered her personal belongings and pharmacy license, packed them up, and left the store. She was not asked to do this, nor was it even suggested; rather, she took it upon herself to behave as if she would not be returning to the store. A Counseling Memo was prepared specifying the concerns and issues shared with Petitioner during the meeting. A Counseling Memo is a document on which company management highlights an issue related to job performance. It coaches an associate, as to, how that issue can be addressed and resolved. Neither the meeting nor the Counseling Memo were in any way based on Petitioner’s age, marital status, disability or any perceived disability. Because Petitioner had removed her possessions from the pharmacy, management was concerned she may not be returning for her next scheduled shift: Monday, April 6, 2009. Thus, Stills (who was responsible for insuring pharmacy coverage) called Petitioner and asked her if she was reporting to work on Monday. Winters also called Petitioner to see how she was doing. Although Petitioner was offended, these calls did not constitute adverse employment actions. Petitioner reported to work for her next shift on Monday, April 6, 2009, where she was presented the Counseling Memo. Petitioner was not being demoted, fired, suspended or otherwise suffering adverse employment action. In response, Petitioner wrote management, stating that she “did not realize the full responsibilities of pharmacy manager,” but did not make any reference to age or disability discrimination, or retaliation. Petitioner’s Second Leave of Absence The following day, April 7, 2009, was the last day Petitioner worked before going back out on a medical leave of absence. The reason for this second leave of absence was a recurrence of her back pain. Prior to taking this leave of absence, Petitioner had not told anyone that her back condition was bothering her while at the Lehigh Acres store. Since going out on this second leave of absence, Petitioner has not submitted any documentation to Respondent, which indicated that she is able to return to work in any capacity. Petitioner did testify that she expects to be released to return to work in the future. In June 2009, Petitioner did receive documentation from her physician indicating she was able to return to light-duty work, but Petitioner never submitted this documentation to Respondent and never requested Respondent to provide her any kind of light-duty work. Instead, she went to a different doctor, who stated that she was unable to return to work at that time, and submitted that documentation to Respondent. Petitioner remains employed by Respondent and is still on a leave of absence. She received short-term disability benefits of 100 percent of her salary for six months after going out on a leave of absence on April 7, 2009. Following the expiration of short-term disability benefits, and up to the present, Petitioner has received long-term disability benefits equivalent to one-third of her monthly salary. Since going out on a leave of absence, Petitioner has not sought any other employment except to submit an application for employment to Publix. She did not disclose to Publix that she had a disability. Alleged Discrimination/Retaliation Respondent has an anti-discrimination policy, which contains a complaint procedure under which employees are required to report any discrimination that they feel they are experiencing in the workplace. Petitioner was familiar with this policy and knew how to report perceived discrimination. Petitioner never reported any form of discrimination to Respondent. Therefore, no decisions made by Respondent regarding Petitioner’s employment were made in retaliation for reporting discrimination. The evidence does not show that any decisions made by Respondent's officials regarding Petitioner’s employment were made due to her age, marital status, disability, or any perceived disability. Petitioner speculates that Respondent's management may have viewed her personal pharmacy records and saw that she took anti-depressants and/or anti-anxiety medication and, from that, concluded that she suffered from a mental disability. Petitioner introduced no evidence supporting this theory. Petitioner admitted that she has no personal knowledge whether Respondent's management viewed her personal pharmacy records. Petitioner admits that the conditions she alleges were discriminatory (e.g., the allegedly stressful environment at the Lehigh Acres store) were not in any way related to her back condition. Rather, Petitioner theorizes that the allegedly stressful environment exacerbated her alleged mental condition. Petitioner failed to prove that she suffered age, marital status, or disability discrimination.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's petition for age and disability discrimination and retaliation under the Florida Civil Rights Act. DONE AND ENTERED this 29th day of October, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 29th day of October, 2010.
The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 8th day of November, 2001.
Findings Of Fact Respondent was employed by Petitioner from December, 1982 to December, 1987 as a tariff clerk, a permanent career service position. On September 23, 1987 Respondent became ill and left work without informing her supervisor, Jill Hurd, or her co-workers. Hurd was available on September 23 and 24, 1987 if Respondent had tried to explain her absence or request leave authorization. Respondent presented Health Status Certificates to Petitioner signed by M. R. Grate, Jr., M.D., dated October 30, November 11 and 18, 1987 which certified her inability to return to work from October 27 through November 30, 1987, during which time she was under his care. On the basis of these certificates, Petitioner authorized her sick leave from October 27 to November 30, 1987. Respondent did return to work on December 2, 1987, but was again absent on consecutive work days of December 3, 4 and 7, 1987. On December 3, 1987, Respondent sent a note to Hurd, via her husband, stating she did not feel well and would not be in to work. On December 4, 1987 her husband again brought Hurd a note stating Respondent would not be in because her baby was ill. Respondent's husband called Hurd on December 7, 1987 to state that she was still ill and would not be in to work. Hurd stated that Respondent needed to get back to work. At no time did Respondent request leave for December 3, 4 and 7, 1987, nor was she approved for leave. She simply informed her supervisor, Hurd, through her husband that she was not coming to work each day. Prior to these unauthorized absences in December, 1987, Respondent had received a memorandum from Hurd on January 14, 1987 setting forth specific instructions for calling in sick following a number of unauthorized absences. Respondent was specifically instructed to call her supervisor, Hurd, each morning by 8:30 a.m. when she wanted to take sick leave. Despite this instruction, Respondent never called Hurd on December 3, 4 and 7, 1987, but simply had her husband deliver notes and messages to Hurd on her behalf. This prevented Hurd from discussing with Respondent the extent of her illness and when she expected to return to work. On November 25, 1987 Respondent had an appointment with Dr. Grate, who signed another Health Status Certificate for the period November 30 to December 11, 1987 indicating she remained under his care and was still unable to return to work. However, despite the fact she did report to work on December 2, 1987 and had been given specific instructions about how to apply for sick leave, she never presented Dr. Grate's Health Status Certificate dated November 25, 1987 to Hurd, or anyone else associated with Petitioner, until the hearing in this case. Therefore, Respondent did not present proper medical certification of illness for December 3, 4 and 7, 1987, and instead simply failed to report to work, or to in any way attempt to personally contact her supervisor. A letter dated December 7, 1987 notifying Respondent of her abandonment of position and of her right to a hearing was sent to Respondent from Petitioner's Executive Director by certified mail, return receipt requested. Respondent's husband signed for this letter on December 9, 1987, and Respondent acknowledges receipt.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter Final Order concluding that Respondent has abandoned her position with Petitioner in the career service due to her failure to report to work, or request leave, for December 3, 4 and 7, 1987. DONE AND ENTERED this 15th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1988. APPENDIX (DOAH Case No. 88-0161) Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Findings of Fact 4, 7. Adopted in Findings of Fact 5, 6, 7. Adopted in Findings of Fact 7, 8. Adopted in Findings of Fact 5, 6. Adopted in Findings of Fact 7, 8, 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact cannot be made since her post-hearing submission shows no indication that a copy was provided to counsel for Petitioner, despite specific instruction at hearing, and the narrative contained in her letter consists of serial unnumbered paragraphs which primarily present argument on the evidence rather than true proposed findings of fact. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William S. Bilenky, Esquire Public Service Commission 212 Fletcher Building Tallahassee, Florida 32399-0850 Harold McLean, Esquire Public Service Commission Office of General Counsel 101 East Gaines Street Tallahassee, Florida 32399 Norma D. Saabir P. O. Box 5802 Tallahassee, Florida 32314-5802 =================================================================
