The Issue Whether Petitioner’s request for hearing was timely filed or should otherwise be accepted by the Department of Management Services and the Division of Administrative Hearings.
Findings Of Fact On May 14, 2013, Petitioner received the Notice, consisting of the Department’s letter denying Petitioner’s Level- II Appeal in which Petitioner had requested cancellation of her dental plan and reimbursement of associated costs. The Notice included a notice of rights advising Petitioner that she could request an administrative hearing by filing a request for hearing within 21-calendar days of her receipt of the Notice. Memorial Day was observed as a national holiday in the United States on May 27, 2013. There are no facts or circumstances in this case, however, indicating that the 21-day period for filing a request for administrative hearing was tolled or suspended because of Memorial Day. Not counting the May 14, 2013, date of receipt of the Notice, the 21st day for filing a request for hearing fell on Tuesday, June 4, 2013. Petitioner mailed her Petition requesting a hearing on June 1, 2013. Petitioner’s receipt from the post office reflects an expected delivery date of June 3, 2013. Petitioner’s Petition, however, was not received by the Department until June 5, 2013. There is no indication that Petitioner sought or was granted an extension of the 21-day period within which to seek an administrative hearing from the date of her receipt of the Notice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, issue a final order dismissing Petitioner’s request for hearing. DONE AND ENTERED this 28th day of February, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2014.
The Issue The issue is whether the Petitioner, a former employee of the Respondent, was overpaid in the amount of $1,165.76, and should be required to repay that amount to the Respondent.
Findings Of Fact The Petitioner was a career service employee of the Respondent and was initially employed on November 17, 1997. The Petitioner’s employment with the Respondent was terminated on June 30, 2003, due to layoffs created by the outsourcing of the Family Services Unit of the Respondent. The Petitioner’s annual rate of pay at the time of her termination was $19,797.44, paid bi-weekly. By letters dated August 26, 2003, October 14, 2003, and February 16, 2004, the Petitioner was informed that six separate salary overpayments had occurred. The Petitioner actually worked 56 hours during the pay period of June 20, 2003 through July 3, 2003, but was inadvertently paid for 80 hours of work. The Petitioner was inadvertently paid for working the days of July 1, 2, and 3, 2003, although her employment had been terminated effective June 30, 2003. The overpayment was for 24 hours, amounting to $183.79, based upon the Petitioner’s annual rate of pay. The Petitioner was no longer employed by the Respondent during the pay period of July 4, 2003 through July 17, 2003, but was inadvertently paid for 80 hours of work. The overpayment amounted to $601.70, based upon the Petitioner’s annual rate of pay. Following termination of employment, the Respondent’s Human Resources Department conducted an audit of the terminated employee’s leave. An audit was performed by the Respondent concerning the Petitioner’s leave. In the course and scope of the Respondent performing the audit of the Petitioner’s leave, the Respondent discovered that the Petitioner had been overpaid for four pay periods in 2003. Once an employee of the Respondent no longer has sick leave remaining, annual leave is used to cover any shortages in sick leave. Once an employee of the Respondent no longer has either sick leave or annual leave remaining, the employee cannot be paid for additional time taken as leave. The additional time becomes “leave without pay.” The Petitioner was overpaid in four separate pay periods when she had insufficient sick or annual leave as follows: 1/31/03-2/13/03: 16.50 hours 4/11/03-4/24/03: 22.75 hours 4/25/03-5/08/03: 4.25 hours 5/23/03-6/05/03: 4.75 hours The sum of the hours of overpayment is 48.25, which translates to the amount of $380.27 in overpayment to the Petitioner for the referenced pay periods. The total amount of the Respondent’s overpayment to the Petitioner, based upon the salary payments for July 1, 2, and 3, 2003, July 4 through 17, 2003, and the four pay periods in which the Petitioner was overpaid when her sick and annual leave had run out is $183.79 plus $601.70 plus $380.27, which totals $1,165.76. The Petitioner was not at fault for the overpayment. She did not falsify her leave reports or timesheets, nor was she accused by the Respondent of having done so. The Petitioner believed that the pay she received for July 4, 2003 through July 17, 2003, was severance pay since she had been terminated when her position had been eliminated. The Respondent does not issue severance pay to terminated employees. The Petitioner believes that some of the leave she had taken during the four pay periods when her sick and annual leave had run out should have been considered administrative leave which, according to the Respondent, was offered to employees in the Family Services Unit who were facing termination as an aid to finding new jobs. Administrative leave was available to employees whose positions were being eliminated to allow them to use the Internet while at the office to search for jobs, and to leave the office for interviews or any testing required for re- employment. The Petitioner failed to document leave time, if any, during the pay periods at issue in this proceeding, that she took for purposes of job testing or interviews. The Petitioner failed to properly designate administrative leave on the automated leave system, Time Direct, for the pay periods at issue in this proceeding, even though, as a secretary specialist for the Respondent for seven years, her duties included keeping track of leave for the people in her work unit. The Respondent offered several of the Petitioner’s timesheets that reflect the Petitioner’s having taken administrative leave on more than 30 occasions from October 2002 through May 2003. These time entries for administrative leave include time during each of the four pay periods at issue in this proceeding, January 31, 2003 through February 13, 2003, April 11, 2003 through April 24, 2003, April 25, 2003 through May 8, 2003, and May 23, 2003 through June 5, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order requiring the Petitioner to repay the Respondent $1,165.76. DONE AND ENTERED this 5th day of March, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2004. COPIES FURNISHED: Rosanna Boyd Apartment 162 3400 Townsend Boulevard Jacksonville, Florida 32277 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all material times, the Respondent held license number 282 which was issued by the Department effective September 1, 1981, and expired August 31, 1982. On or about September 1, 1981, the Respondent purchased the nursing home facility from Ramsey Nursing Facilities, Inc., which was owned and operated by Ethel G. Miller. Roberto Villaescusa became administrator of Eden on or about September 1, 1981. He replaced the previous administrator, Ethel G. Miller. On March 15, 1982, the Department mailed an application for license renewal to the facility by certified mail, return receipt requested. The envelope was addressed to "Ms. Ethel G. Miller, Ashley Manor Care Center, 8785 N.W. 32nd Avenue, Miami, Florida 33147." On March 18, 1982, the license renewal was received by Jesse Brooks, office manager of Eden, who forwarded the letter to D.I.S.C. Corporation, the agent and accountant for Ms. Miller. Mr. Brooks did not open the letter since he believed it was personal mail because it was addressed specifically to Ms. Miller. The letter and other mail were subsequently returned by D.I.S.C. to the Respondent together with instructions that the mail be delivered to Manny Garcia, the son of Ms. Miller, who was then deceased. Shortly after the receipt of the letter from D.I.S.C. and before forwarding it to Garcia, Roberto Villaescusa, Eden's administrator, contacted William Garrett, acting director of licensure for the Department, to inquire regarding license renewal procedures. Garrett advised Villaescusa that the official renewal form had been revised and that such form could only be obtained from Jacksonville. The revised license renewal form was shipped from Jacksonville to Miami where it was obtained by Eden. Within two days of receipt, the new, revised form was completed and mailed back to Jacksonville. It was received in Jacksonville on July 26, 1982, fifty-two days past the renewal date. It is the long standing policy of the Departments office of Licensure in Jacksonville to annually send to nursing facilities licensure notices and application forms in sufficient time for them to be completed and returned ninety days prior to the expiration date stated on their licenses. Nursing home operators and administrators have come to rely upon receiving such notification from Jacksonville.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order assessing a late fee of $5,000 against the Petitioner, for failing to timely renew its license to operate a skilled nursing facility. DONE and RECOMMENDED this 3rd day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983. COPIES FURNISHED: Martha F. Barrera, Esquire 1320 South Dixie Highway Coral Gables, Florida 33146 Charles J. King, Esquire 3037 East Commercial Boulevard Fort Lauderdale, Florida 33308 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner, Basil Glinton (Glinton), was employed full time by the Respondent, Department of Health and Rehabilitative Services (Department) as a Public Assistance Specialist II. On September 14, 1984, as a result of a transfer, Glinton was scheduled to start work at the Department's Food Stamp Office, Unit 61, in Miami, Florida. At 9:15 a.m., September 14, 1984, a Friday, Glinton reported to Unit He requested and received his paycheck, and advised the acting supervisor that he had a doctor's appointment which would require his absence from the office for about one hour. Glinton did not return to the office that day. On Monday, September 17, 1984, Glinton reported to Unit 61 and worked from 8:12 a.m. to 5:00 p.m. On that date, the office supervisor, Raquel Tima, met with Glinton and spoke with him about his absence of September 14, 1984. Ms. Lima advised Glinton that she needed a doctor's statement to authorize that absence. No doctor's statement has been produced. Glinton failed to report for work the remainder of that workweek-- September 18-21, 1984. On September 21, 1984, Ms. Lima sent a warning letter, certified mail, to Glinton. The postal claim check reflects that Glinton was notified of the letter on September 24, 1984, September 29, 1984, and October 9, 1984, but failed to claim it. Glinton likewise failed to report for work the following week-- September 24-28, 1984. He did, however, appear at the office on Friday, September 28, 1984, to request his paycheck. On October 1, 1984, Glinton was personally delivered a letter dated September 28, 1984, which advised him that his absence from work since September 18, 1984 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Glinton of his right to petition the Department of administration for a review of the facts and whether they constitute abandonment. By letter dated October 4, 1984, Glinton timely petitioned the Department of Administration for review. In his letter, and at final hearing, Glinton claimed he was ill and under a doctor's care for the period of September 18-28, 1984, and that he had routinely called, or had someone else call, the office to advise them of his illness. While professing "illness" for a two-week period, Glinton failed to offer any evidence of the nature of his illness. He further failed to offer the testimony of his physician, or any other evidence supportive of his claim. While Glinton acknowledges familiarity with the Department's rule which requires that the supervisor be notified of absence due to illness, he made no attempt to contact his supervisor. The only time the office was notified of his absence was on September 19, 1984 when an unknown female telephoned and advised the switchboard operator, without explanation, that Glinton would not be coming to work on that date. Glinton's testimony that his absence from work during the period of September 18-28, 1984 was due to illness, and that he telephoned the office every day during his absence, is inherently improbable and unworthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order that: Petitioner, Basil Glinton, abandoned his position and resigned from the Career Service effective October 1, 1984. Dismisses the petition of Basil Glinton with prejudice. DONE AND ENTERED this 8th day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK 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 May, 1985. COPIES FURNISHED: Dniel C. Brown, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Leonard Helfand, Esquire Department of Health and Rehabilitative Services Suite 1070, 410 N.W. 2nd Avenue Miami, Florida 33128 Robert L. McKinney, Esquire Suite 1107 Jackson Medical Tower 1500 N.W. 12th Avenue Miami, Florida 33125 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the effective retirement date of Petitioner as determined by Respondent is correct.
Findings Of Fact Ms. Heim was employed by the Department of Corrections. She was a regular member of the Florida Retirement System (FRS) with 16.34 years of creditable service. Her date of birth is September 5, 1945. Ms. Heim terminated employment from the Department of Corrections in July 1999, at the age of 53. At the time of her separation from employment, Ms. Heim did not receive instructions on her eligibility to apply for early retirement from the Department of Corrections or from the Division of Retirement. She did not receive any misinformation or erroneous information regarding her retirement from either the Division of Retirement or the Department of Corrections. Had Ms. Heim known about early retirement, she would have elected to retire in 1999, and her retirement (assuming she timely filed her application) would have been August 1999. Had she retired in 1999, her benefits would have been statutorily reduced by five percent for each year she was under the age of 62, resulting in approximately a 30 percent reduction in the current amount of her benefit. There are approximately 800 employers participating in FRS with approximately 600,000 active members of FRS and 200,000 retirees. When a member terminates employment, the Division is not informed by the member’s employer. It is the responsibility of the member to inform the Division of his or her retirement since leaving state employment does not necessarily mean the person is retiring or desires to receive his or her retirement benefits. The Division periodically sent benefit estimates to Ms. Heim after her termination. However, the estimates were sent to the wrong address and were not received by Petitioner until April 2002. At that point, the Division learned of her termination and sent her a letter advising her of her ability to elect early retirement. When Ms. Heim learned of her early retirement option, she contacted the Division. The Department of Management Services, Division of Retirement, sent Ms. Heim an application for retirement in April 2002. The Petitioner, upon receiving the application for retirement, submitted the required paperwork on July 2, 2002. The Division, pursuant to its statutes and rules, determined that Ms. Heim’s effective date of retirement was May 1, 2002, and has offered her benefits based on that date. There was no evidence which demonstrated that the May 1 date was incorrect. Ms. Heim believes her retirement date should be August 1, 1999, because she was not at fault for not applying for retirement in 1999. However, as indicated, it is the member's responsibility to notify the Division about that member's retirement. In this case, the Division complied with the statutes and rules governing the Florida retirement system. Finally, Ms. Heim believes that, should her effective retirement date be changed, her benefit should not be reduced as the Division's statutes and rules require. She objects to her benefit being reduced because of her desire “to punish the Division of Retirement” for not giving her clear information about early retirement or being aware of her correct address. The problem with Petitioner’s argument is that the agency responsible for Ms. Heim’s employment and retirement was the Department of Corrections and not the Division. The other problem is that there is no factual or legal bases in law or equity to grant such relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order confirming Petitioner’s retirement date as May 1, 2002. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 19th day of December, 2003. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Mantana Heim 2664 Radford Church Road Moneta, Virginia 24121-4496 Alberto Dominguez, Esquire General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact At all times material hereto, Respondent has been a licensed real estate broker in the state of Florida having been issued license no. 0052320. The last license issued was as a broker for First Federal Realty, Inc. First Federal Realty, Inc. (hereinafter "Federal Realty"), is the owner and developer of mobile home parks. Respondent is and has been the president of Federal Realty. On June 13, 1971, Federal Realty and Mae F. Summers entered into two agreements for deed whereby Summers would become the owner of lot A-19 in Christmas Park and the west one-half of lot 229 in Lake Louise Estates. Both developments are located on Route 50 between Orlando and Titusville, just a few miles apart. Respondent was not the salesman for either of those lots, and the Articles of Agreement were signed by the vice-president of Federal Realty. The Articles of Agreement provided for a modest down payment ($300 on one lot and $20 on the other), monthly payments with an interest rate of 7 percent, and the buyer to pay all taxes on the land. The Articles of Agreement further provided that the buyer would be considered in default for failure to make a payment within 30 days from the due date or failure to perform any other covenant and that thereafter the seller would have the option of terminating the contract with the buyer forfeiting all payments made. The seller was specifically granted the right to reenter and take possession without the requirement of filing any legal action therefor. Summers began making payments to Federal Realty, which payments were generally late. Her history of late payments commenced almost immediately. Further, she failed to pay the taxes on either of the two lots necessitating Federal Realty paying the taxes on the lots and seeking reimbursement from Summers. Over the years, demand letters were sent to Summers by the employee of Federal Realty responsible for collecting payments and maintaining all records regarding Christmas Park and Lake Louise Estates asking Summers to please make payments on the lots and to please bring her accounts current so that it would not be necessary for Federal Realty to cancel the agreement for deed. The September 1985 payments on both lots were received by Federal Realty on September 9, 1985. Thereafter, no further payments were made by Summers. In February 1986, Summers' daughter called the Respondent and asked him if they could reinstate the Agreements for Deed. Respondent advised her that would be acceptable to him and that he would send her copies of the contracts. Respondent went to the files, pulled out copies of the contracts, and mailed those to Summers on February 19, 1986. The contracts Respondent found in the files were identical to those signed in June of 1971 except that the interest rate was 10 percent rather than 7 percent. Respondent's transmittal letter on February 19, 1986, advised Summers as to the balance due on both lots at 10 percent interest. He further advised Summers that the payment she had sent on February 12, 1986, had been applied to the late payments due for the months of October and November of 1985 and that, therefore, Summers was still late and past due for the payments due in December 1985 as well as January and February of 1986. Summers did not respond to the February 19, 1986 letter. She also failed to make any additional payments. At the time of the final hearing in this cause, the last payments on each lot remained the November 1985 payments which had been made in February of 1986. On March 31, 1986, Respondent sent to Summers by certified mail a letter advising her that she had seven days in which to bring her account up to date on both lots or Federal Realty would take back the property in accordance with the Articles of Agreement. That letter, marked "Final Notice," although mailed to Summers at her correct address was eventually returned to Federal Realty with a notation that the letter had been unclaimed despite several notices from the post office to Summers. In May 1986, Summers' daughter became employed at a title company. She had an amortization schedule prepared on each of the two lots using a 7 percent interest rate. The amortization schedule assumed timely payments made at 7 percent interest. It failed to factor in the many late payments with the extra interest which would have accrued and failed to take into account the responsibility for paying taxes on the two lots. Based upon that inaccurate amortization schedule, Summers' daughter "felt" that the lots must be paid for although there might be a balance due on one of them. In May of 1987, Summers' attorney wrote to Respondent demanding a deed for the lot in Christmas Park and a payoff figure for the lot at Lake Louise Estates. That correspondence also questioned the interest rate which had been set forth by Respondent in his letter of February 19, 1986. By the time that Summers' attorney responded in May of 1987 to Respondent's letter of February of 1986, both lots had been sold to third parties. Respondent was able to obtain title to one of the two lots in question. He has offered to convey that lot to Summers free and clear. Summers has refused to accept title to that lot because she wants title to both lots. Respondent did not change the interest rate on the Articles of Agreement from 7 percent to 10 percent and does not know who did. It was not unusual, however, for the employees of Federal Realty to renegotiate contracts on these mobile home lots when the purchasers had difficulty making payments but did not wish to default under their contracts. The only copies of the Articles of Agreement in Federal Realty's files were the copies bearing a 10 percent interest rate. Using a 10 percent interest rate, Summers has not paid the full purchase price for either lot. Using the 7 percent interest rate and taking into account the many late payments and the nonpayment of taxes when due, Summers has not paid in full the purchase price for either lot. Computing a payoff figure on the lots in Christmas Park and Lake Louise Estates is difficult when there has been a small down payment and many late monthly payments since amortization schedules cannot be prepared where there is a negative cash flow. It has been Respondent's policy to compute balances due in such a situation as precisely as possible, provide that figure to the purchaser, and then negotiate with the purchaser if the purchaser suggests that the appropriate figure is less than that given by the Respondent. Petitioner offered no evidence to controvert the balance due figures for the two lots which Respondent set forth in his February 19, 1986 letter to Summers. None of the Articles of Agreement was ever recorded. Summers was never in possession of either of the mobile home lots, and those lots were simply vacant land at all times material hereto.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE and RECOMMENDED this 16th day of February, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 16th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3667 Petitioner's proposed findings of fact numbered 2, 3, 7, 9, 12, and 13, have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 1 and 14-16 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel or recitations of the testimony herein. Petitioner's proposed findings of fact numbered 4, 5, 8, and 17, have been rejected as being contrary to the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 6 has been rejected as not being supported by the evidence in this cause. Petitioner's proposed findings of fact numbered 10 and 11 have been rejected as being unnecessary for determination herein. Petitioner's proposed finding of fact numbered 18 has been rejected as being irrelevant. COPIES FURNISHED: Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Paul B. Steinberg, Esquire 767 Arthur Godfrey Road Miami Beach, Florida 33140 James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue in this case is whether Celeste H. Tiemsanguan (Petitioner) abandoned her career service position with the Department of Health and Rehabilitative Services (Respondent).
Findings Of Fact Petitioner was employed as a clerk specialist with Respondent from October, 1988 until the end of December, 1988, and during such employment was a member of the career service system. The last day on which Petitioner worked was December 21, 1988. Petitioner brought a note to the home of her supervisor at 7:30 a.m. on December 22, 1988, stating that, "Effective this date I request six months maternity leave, with the Doctor's excuse to follow . . . ." Petitioner never provided a doctor's statement certifying her pregnancy, with specific beginning and ending dates for maternity leave, as required by the Respondent's Procedure No. 60-5 which governs leave without pay. By letter dated December 22, 1988, the Respondent attempted to notify the Petitioner that she needed to submit a doctor's statement prior to her leave being approved. This letter was sent by certified mail, return receipt requested, to Petitioner's last known address. However, it was returned to the Respondent as undeliverable. Petitioner did not report to work and made no further contacts with Respondent after December 22, 1988. She never provided a doctor's certification. On December 29, 1988, Petitioner was deemed to have abandoned her position, and notice of her abandonment was mailed to her on that date by certified mail, return receipt requested. Again, this letter could not be delivered. It became known to the Respondent on January 3, 1989, that Petitioner was in jail, and personal service of this notice of abandonment was accomplished by Betty Maddux, her immediate supervisor, on that date. Petitioner refused to sign acknowledging receipt of this letter. Petitioner did not properly request approval of maternity leave because she never provided a medical certification. She abandoned her position because she never received approval from Respondent for maternity, or any other type of leave. Therefore, between December 22 and December 29, 1988, Petitioner was absent without approved leave for three consecutive work days. Notice of the final hearing was sent to Petitioner at her last known address of record, and was not returned as undelivered. In fact, the Petitioner ordered subpoenas from the Division of Administrative Hearings on July 13, 1989. The final hearing had previously been continued one time at the request of the Petitioner.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service system. DONE AND ENTERED this 14th day of September, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1989. COPIES FURNISHED: Barbara McPherson, Esquire District Legal Counsel 701 94th Street North St. Petersburg, FL 33702 Celeste H. Tiemsanguan 628 88th Avenue North, #2 St. Petersburg, FL 33702 John Miller, Esquire General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Gregory Coler, Secretary 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Larry Scott, Esquire 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel 435 Carlton Bldg. Tallahassee, FL 32399-1550 A. J. McMullian, III Interim Secretary Dept. of Administration 435 Carlton Bldg. Tallahassee, FL 32399-1550
The Issue Whether Petitioner’s employment with Respondent terminated on May 31, 2003, or whether Petitioner continued to be employed by Respondent during the next calendar month.
Findings Of Fact Petitioner Babu Jain was hired by Florida Agricultural and Mechanical University (FAMU) as a physics professor in September, 1967. He became an associate professor with tenure in 1979 and a full professor in 1996. The exact date of his last day of employment is a central issue in this case. In 1998, Dr. Jain learned of the DROP program. After reviewing written materials regarding DROP for nearly a year, Dr. Jain decided to join DROP in 1999. He executed Forms DP-11 and DP-ELE, indicating his election to participate in DROP. Form DP-ELE is entitled, "Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment." Form DP-ELE includes the following: "RESIGNATION FROM EMPLOYMENT TO PARTICIPATE IN THE DROP - I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes . . . and resign my employment on the date I terminate from the DROP." The form contains Dr. Jain’s notarized signature below the following: "I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S." Dr. Jain signed the form on October 12, 1999. The bottom portion of Form DP-ELE is to be completed by the agency head or designated representative. Within that portion of the form, the signature of Nellie Woodruff, Director of Personnel Relations at FAMU, appears following an acknowledgement: "I acknowledge that DROP participation for Babu L. Jain will begin on 06/01/1999, and I accept his resignation effective 05/30/2003 (the date the employee’s DROP participation will terminate)." This portion of the form indicates that it was signed by Ms. Woodruff on November 10, 1999. Sometime in the early part of 2003, Dr. Jain, for personal and financial reasons, decided that he wanted to relinquish his participation in DROP. He was aware that if he did so, he would forfeit all accumulated DROP moneys. Dr. Jain first relayed his desire to FAMU by verbally informing Dr. Henry Williams, the Assistant Dean of the College of Arts and Sciences, who was in charge of science departments. This conversation took place in approximately mid-February, 2003. On March 18, 2003, Dr. Jain sent a letter to Dr. Larry Rivers, Dean of the College of Arts and Sciences, which read in pertinent part as follows: This letter is in connection with my 1999 DROP application. I would like to inform you that I am finding my circumstances very unfavorable to accept the DROP at this time and, hence, I will not be taking the retirement in May 2003. Dr. Jain sent a copy to, among others, Dr. Gladys Lang, who was the Acting Provost and Vice President of Academic Affairs at that time. She did not take any action regarding Dr. Jain’s letter because it was her understanding and belief that no action was necessary. It was her understanding and belief that that Dr. Jain notified the University of his decision to withdraw from DROP and that no action was necessary on her part, "because I believed that the participants in DROP could make that decision that they wanted to continue to work and did not want to continue in the DROP program. I did nothing." She considered her decision not to take any action on Dr. Jain’s letter to be an acceptance of his decision. However, Dr. Lang acknowledged that had the letter been addressed to her, rather than her receiving a copy of it, she would have responded. Dr. Jain did not receive any response to his March 18, 2003, letter to Dr. Rivers. Because of this, Dr. Jain wrote again to Dr. Rivers on April 18, 2003, in which he reiterated that he did not want to retire in May 2003. Dr. Jain received a Termination Notification Form, Form DP-TERM, from the Division of Retirement in February 2003. Form DP-TERM specifies that it must be completed by both the DROP participant and the employer. It reads in pertinent part as follows: According to our records, your DROP termination date is 05/31/03. This form must be completed by both you and your employer and returned to the Division of Retirement in order to receive your DROP benefits and your monthly retirement benefits. In order to collect DROP, you must agree to the following statements. I understand that I cannot accept work for any Florida Retirement System (FRS) covered employer during the calendar month following my DROP termination date or my DROP participation will be null and void. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit including interest. I also understand that I may not be reemployed by any FRS employer in any capacity . . . during the calendar month immediately following my DROP termination date. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit, including interest retroactive to my enrollment date in DROP. I understand that if I forfeit my DROP benefit, my employer will be responsible for making retroactive retirement contributions and I will instead be awarded service credit for the time period during which I was in DROP. I will be eligible for a service retirement benefit based on my new termination date. I will be responsible for submitting an Application for Service Retirement. My retirement benefit will be based on my creditable service and salary, including such service and salary earned while in DROP. Dr. Jain did not sign Form DP-TERM. It is not clear from the record whether FAMU was even aware that Dr. Jain received this form. In any event, the portion of the form which is to be completed by the employer certifying that the employee has or will terminate employment is not signed by anyone from FAMU. Dr. Bill Tucker is a faculty member of the physics department and is president of the FAMU chapter of the United Faculty of Florida. On or about April 19, 2003, Dr. Tucker met with Dr. Rivers regarding Dr. Jain’s intention not to retire. Dr. Tucker left that meeting with the impression that Dr. Rivers had accepted Dr. Jain’s decision to remain a faculty member at FAMU and not retire in May 2003. Following that meeting, Dr. Jain wrote a letter dated April 21, 2003, to Dr. Rivers thanking him for his support and understanding the he, Dr. Jain, had decided not to retire. The letter also reminded Dr. Rivers that Dr. Mochena had not yet given him his 2003-2004 assignment of responsibilities, and requested that Dr. Rivers ask Dr. Mochena to do so at his earliest opportunity. Dr. Rivers did then call Dr. Mochena regarding preparing a schedule for fall semester for Dr. Jain. Dr. Mochena described the call as a "very quick call." As a result of that call, Dr. Mochena issued an Assignment of Responsibility Form on April 23, 2003, for Dr. Jain for the fall 2003 semester. While Dr. Rivers insisted at hearing that his intention was that Dr. Jain be assigned teaching duties on an adjunct basis, he acknowledged, and Dr. Mochena confirmed, that the assignment of responsibilities for Dr. Jain for fall of 2003 was not of a type that would have been given to an adjunct professor. Sometime after April 23, 2003, Dr. Jain asked Dr. Mochena to assign him teaching responsibilities for the summer of 2003. Dr. Mochena had already made his summer teaching assignments. He assumed, however, that since Dr. Jain was being assigned fall classes, that it was it would be appropriate to assign summer classes to Dr. Jain as well. On May 2, 2003, Dr. Mochena issued an Assignment of Responsibility Form for Summer Term "C" 2003, which was for 12 weeks. This was signed by Dr. Jain and Dr. Mochena on May 2, 2003. While Dr. Mochena's assignment of summer teaching responsibilities to Dr. Jain was as a result of Dr. Jain’s request and not at the request of the Dean’s office, Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, and Dr. Larry Rivers signed the Assignment of Responsibility Form for Summer Term "C" for Dr. Jain on May 5 and 6, 2003, respectively. Dr. Williams and Dr. Rivers also signed two forms on May 5 and 6, 2003, respectively, regarding Dr. Jain entitled "Recommendation for Faculty Employment." One was for the period of employment designated May 12, 2003 to June 30, 2003. The second was for the period July 1, 2003 to August 1, 2003. These recommendations went to the new Provost, Dr. Robinson. Dr. Larry Robinson became Provost and Vice President of Academic Affairs of the University on May 5, 2003. On May 20, 2003, Dr. Robinson signed two employment contracts regarding Dr. Jain for Summer Term "C." The first contract period was May 12, 2003 to June 30, 2003. The period of the second contract was July 1, 2003 until August 1, 2003. There were two contracts covering the summer term because the "C" summer term during which the physics courses were taught, extended into the next fiscal year. There is a section on the two summer contracts entitled "Tenure Status." There is an "X" beside the designation "Tenured." On May 21, 2003, Nellie Woodruff sent a memo addressed to Dr. Robinson which stated as follows: SUBJECT: DROP Termination Date for Babu L. Jain We are requesting your intervention in bringing closure to the subject employee’s request to withdraw from the DROP and continue his employment with the University subsequent to May 31, 2003. Enclosed are copies of the documents which were received in this Office from both Dr. Jain and the Division of Retirement. Please advise this office by May 30, 2003, regarding the appropriate action to take relative to Dr. Jain’s request for withdrawal from the DROP and remaining an employee of the University. According to Dr. Robinson, Ms. Woodruff’s May 21, 2003, memorandum to him was the first time he "officially" became aware of the issue regarding Dr. Jain. That is, he was generally aware of the fact that several employees were approaching their retirement date and entering DROP. Dr. Jain’s designated retirement date was a month earlier than the other FAMU DROP participants who had a June 30, 2003, DROP termination date. Whether Dr. Robinson had unofficial knowledge of Dr. Jain's retirement date or of his desire to withdraw from DROP at the time he signed the two summer contracts is unclear based upon his testimony. As a result of learning of Dr. Jain’s situation, Dr. Robinson sent a certified letter to Dr. Jain dated May 27, 2003, which read as follows: This comes in response to your request to void your participation in the Deferred Retirement Option (DROP) program. It appears from your correspondence of April 18, 2003, addressed to Dr. Larry Rivers, Dean of the College of Arts and Sciences, that you believe the decision to void your participation is a unilateral one. On the contrary, the decision to void your participation in DROP is a mutual one, requiring the University’s assent. The University is not in agreement with your decision to void your participation in DROP. I call your attention to two documents, Form DP-ELE and Form DP-11, which are on file with your signature. Specifically, Form DP- ELE reads in relevant part as follows: "I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated above and resign my employment on the date I terminate from the DROP." Additionally, Form DP-11 reads in relevant part as follows: "I have resigned my employment on the date stated above and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.).” Regrettably, the University must inform you that it will follow the guidelines for DROP as outlined in the aforementioned Florida Statutes and cannot support your request to void your application in DROP. I also call your attention to Florida A&M University Rule 6C-10.211(2)(c), Florida Administrative Code which is enclosed with the aforementioned forms. Thank you for your many years of service to the University. The Division of Retirement issued a letter, dated May 5, 2003, to Dr. Jain with Form DP-VOID enclosed. Dr. Jain insists he did not receive it in the mail and, therefore, went to the Division of Retirement on May 29, 2003, to pick it up. In any event, he signed the DROP-VOID form on May 29, 2003, and took it to FAMU in an attempt to get it executed by Dr. Rivers or Dr. Robinson. The DROP-VOID form contains a section entitled "Employer Certification" which reads as follows: This is to certify that the (agency name) has rescinded the resignation of the above named member, and the member will continue working in a regularly established position with FRS ceverage. We understand the member’s DROP participation will be null and void, the membership in the FRS Pension Plan will be reestablished to the date the member joined the DROP and we will begin immediately reporting the correct retirement plan and contributions to the Division of Retirement. FRS will adjust previous payrolls reported under DROP based upon the member not having joined the DROP. In addition, we understand that contributions, plus interest, may be required. Future payrolls should reflect the retirement plan of active membership. Despite Dr. Jain’s efforts on May 29 and 30, 2003, to get this form signed, the DROP-VOID form was not signed by anyone at FAMU. On either May 29 or 30, 2003, Dr. Mochena received a call from Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, who instructed Dr. Mochena to end Dr. Jain’s summer employment and to reassign Dr. Jain’s classes to another instructor. Dr. Mochena assigned Mr. Jay Jackson to teach Dr. Jain’s classes beginning Monday, June 2, 2003. Dr. Robinson wrote a second letter to Dr. Jain on May 30, 2003, which read in pertinent part as follows: Dear Dr. Jain: This letter is to inform you that the two Summer Semester Employment Contracts, May 12, 2003 to June 30, 2003, and July 1, 2003 to August 1, 2003, were issued in error to you due to the fact that your DROP retirement date is May 31, 2003. As a result, you will be paid through May 30, 2003 for your services to the University and the University will consider you to have retired as of May 31, 2003. On Monday, June 2, 2003, Dr. Jain arrived at his classroom where Mr. Jackson was teaching. Dr. Jain left the classroom and went to see Dr. Mochena. Dr. Jain learned from Dr. Mochena that he had been instructed by the Dean prior to Saturday, May 31, 2003, to replace Dr. Jain with another instructor. Dr. Jain continued to go to his office for several days after June 2, 2003, "doing things I usually do. Do some research, study, read." He did not teach any classes in June 2003. Each department submits a payroll certification indicating the number of hours that an employee worked during a pay period. The payroll certification signed by Dr. Mochena on June 4, 2003, for the pay-period May 23 through June 5, 2003, initially indicated that Dr. Jain worked 79.3 hours. However, the 79.3 was crossed out and replaced with 47.58. The 47.58 was in handwriting, not typed as the rest of the numbers on the certification sheet which included the entry of 79.3 hours. The record is not clear as to who made the correction or when it was made. According to Ms. Woodruff, however, it is not the practice of the payroll section to change any certifications after the fact. Additionally, once an employee in a salaried position is added to the payroll, he/she is automatically issued a paycheck based upon the contract, unless some action occurs. In any event, the payroll section did not make an adjustment in Dr. Jain’s pay for the pay-period May 23 through June 5, 2003. Dr. Jain’s received an Earnings Statement reflecting a "pay date" of June 13, 2003, and a pay-period of 05/23/2003- 06/05/2003 reflecting regular wages of $3,266.11. Subsequently, the payroll office at FAMU completed a Refund for Overpayment of Salary form and submitted it to the Office of the Comptroller, Bureau of State Payrolls. In the section entitled, Reason for Adjustment, the payroll office wrote, "DROP end date 5/30/03." A salary refund in the amount of $898.33 was deducted from Dr. Jain’s sick leave payout on June 20, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letters of May 27 and 30, 2003, and reinstating Petitioner to employment effective June 1, 2003, including all salary and benefits for that period of time.1/ DONE AND ENTERED this 17th day of May, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of May, 2004.
