Findings Of Fact Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 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
The Issue The matter presented here for consideration concerns the termination of the Petitioner, George Nelson, from his employment with the Respondent, State of Florida, Department of Agriculture and Consumer Services, premised upon the purported authority set forth in Rule 22A-13.04, Florida Administrative Code, following the Petitioner's alleged decision to qualify as a candidate for office in the State of Florida, without first gaining permission of the appropriate authorities as set forth in Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the petitioner notified the Respondent of his intention to run for a School Board seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Joint Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the petitioner that he would not be allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the petitioner determined to offer his candidacy without the permission of his agency head, and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by a Joint Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the petitioner to inquire why the petitioner had offered his candidacy without permission of the agency. The petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as Joint Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Joint Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the School Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the petitioner were ones of resignation from his position as Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the School Board of Wakulla County and also -he concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the Department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that he had not. Subsequent to that latter conversation with Wood, the petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Joint Exhibit No. 5. This letter informed the petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1980, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. That correspondence from Carl T. Dierking, Chief of Personnel Management and Employee Relations for the Department of Agriculture and Consumer Services, went on to say that in view of the Petitioner's decision to qualify as a candidate being made after the request to allow him to run had been initially denied by the Department and in keeping with Rule 22A-13.032, Florida Administrative Code, that the Petitioner could request an administrative hearing "toward obtaining an additional review of your situation." This request was to be forwarded through Robert Chastain, Esquire, General Counsel, State of Florida, Department of Agriculture and Consumer Services. After August 15, 1980, the petitioner was removed as a permanent party Career Service employee with the Respondent. On August 27, 1980, the Petitioner corresponded with Mr. Chastain through a letter which stated, "I would like to have an appeal of my dismissal of August 15, 1980, reason, not just cause." A copy of this petition letter may be found as Joint Exhibit No. 6 admitted into evidence. In turn Mr. Chastain contacted the Director of the Division of Administrative Hearings requesting that a Hearing Officer be assigned and a hearing be set. A copy of that correspondence addressed to the Director of the Division of Administrative Hearings may be found as Joint Exhibit No. 7, admitted into evidence. Through that correspondence, Mr. Chastain expressed his opinion that Rule 22A-13.032(1), Florida Administrative Code, provides that an employee has the right to a Section 120.57, Florida Statutes, hearing. Subsequent to the case assignment herein, the Petitioner through his counsel has filed a rules challenge to the Rules 22A-13.04 and 22A-7.10(4)(a), Florida Administrative Code, which may be found in the Division of Administrative Hearings Case No. 80-1925R. In addition, the Petitioner in Division of Administrative Hearings Case No. 80-2049R has attacked the Joint Exhibits Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. In fact, the Petitioner's duty assignment as a forest ranger would conflict at times with his function so School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger. The petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary forest ranger at this time.
Findings Of Fact Burney was employed by HRS until 5:00 p.m. on September 28, 1988, when she was deemed to have abandoned her position. Her regular working hours were 8:00 a.m. to 5:00 p.m., Monday through Friday. Burney was not at work on September 26, 1988. She maintains that she had someone call in for her to inform HRS that she would not be in that day. Burney does acknowledge that her supervisor, Sherry Martin, told the caller that she could not approve leave for that day. Burney did not report for work on September 27, 1988. Burney called her office and spoke with another clerk, not with her supervisor. Her supervisor was unavailable and the clerk did not have the authority to approve leave. Burney again failed to report for work on September 28, 1988. She called in and spoke with Mrs. McClenton, another supervisor. Burney informed Mrs. McClenton that she had a drug problem which was why she had not been at work. Burney asked her where she could get some help for her problem. Burney was told that her supervisor could not help her and that she would have to get help on her own. On October 4, 1988, HRS sent Burney a certified letter advising her that her absence from work on September 26-28, 1988, was not authorized and that she was deemed to have abandoned her position and to have therefore resigned from Career Service, effective 5:00 p.m. September 28, 1988. On October 7, 1988, Burney returned to her office seeking her paycheck. She was told by the personnel office that leave was not approved for that period and that she was no longer employed there. Burney did not report for work on any day between September 26 and October 7, 1988. She had not requested leave on a leave request form and no leave was authorized by her supervisor for this period. Burney knew that she was not on approved leave and had been told that her supervisor would not approve leave for that period. Leave is only authorized when it is requested on an appropriate leave request form and is approved by a supervisor. Rule 22A-7.010(2), Florida Administrative Code, provides: An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service...
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order and therein find that Angela B. Burney has abandoned her position, deem that Angela B. Burney has effectively resigned from Career Service, and dismiss the petition for review. DONE and ENTERED this 20th day of February, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1988. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Angela B. Burney 1585 West 35th Street Jacksonville, Florida 32209 Scott D. Leemis Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue Whether Respondent is guilty of an unlawful employment practice by discrimination against Petitioner on the basis of handicap.1/
Findings Of Fact Petitioner's Charge of Discrimination arises out of her employment with Respondent Children's Home Society (CHS) and a series of medical leaves in the years 2000-2001, which ultimately resulted in loss of her position. Respondent CHS is a non-profit social service organization established over 100 years ago. It is the oldest private child welfare service in Florida. It provides a range of services for the benefit of children and families throughout the state, including but not limited to counseling and support services, adoption, residential care, and home-based services. Petitioner appeared at the November 7, 2003, disputed- fact hearing using a cane. The undersigned observed that she seemed to experience pain at movement of her back and one leg. She presented no supportive medical evidence that she is currently disabled/handicapped and little to explain the cause of her present mobility problems or when they first appeared, except that one of her explanations for her current condition is that she was held against her will in a psychiatric center, in June 2002, pursuant to a circuit court Order, and at that time she fell and broke her back and leg. This occurred a year after Respondent had declared Petitioner's position vacant. Petitioner also testified that on March 29, 1999, on her way to work with CHS, her back and legs were injured, her face was crushed, and her teeth were shattered in an automobile accident that totaled her car. There is no evidence that she was off work with CHS for any period of time in 1999 or that any workers' compensation claim was made by her to CHS at that time. Petitioner did request a wage statement from CHS in connection with some automobile insurance claims in 1999. Also, in 2001, Petitioner also made a claim to CHS's insurance company for long-term disability benefits on the basis of this automobile accident, as more fully described below.3/ It is significant that her September 29, 2001 Charge of Discrimination did not list her back and legs as her handicap. Her November 14, 2002 Petition for Relief mentions the 1999 automobile accident. In 2000-2001, Petitioner was Program Supervisor I for CHS's Healthy Families Program in the Lake County area of CHS's Mid-Florida Division. She was in charge of the North Lake area, which encompasses Fruitland Park, Tavares, Leesburg, Lady Lake, Mt. Dora, Astor, Paisley, Sorrento, and other unincorporated areas of North Lake County. The Healthy Families Program is a very demanding one. Its Program Supervisors I have multiple and complicated responsibilities. As a Program Supervisor I for the Healthy Families Program, it was Petitioner's job to provide hands-on supervision to six paraprofessional Family Support Workers (FSW); ensure that rigorous program standards were maintained by them and other paraprofessionals and interns through weekly (two-hour minimum) formal staffings of each case; conduct ongoing case file reviews for quality of documentation; conduct year-end performance evaluations of supervised staff through information gained during the weekly staffings, file reviews, data related to stated objectives, home visits, and telephone quality assurance contacts with all clients; coordinate activities among and between staff (such as Christmas food and toy drives); coordinate comprehensive training and orientation for staff; provide staff with ongoing coaching throughout program implementation; oversee new case staffing and assignments with Family Assessment Workers (FAW); provide professional intervention for difficult cases; conduct joint home visits with all case load families every quarter; generate and/or oversee the reporting of program data; provide monthly comprehensive regular reports to a Program Manager on the status of all program activity; provide home visits and documentation in the absence of an FSW; cross-train to be an FAW; and assume new case assessment and documentation in the absence of an FAW. Program supervisors, with peers, conduct six to eight weeks of intensive training for each new FSW. After the initial training, the Supervisor is responsible for an additional 40 hours of ongoing training. The weekly staffing on every case is mandatory. Healthy Families Florida allows no excuses for a missed staffing on even one case in one caseload in one week. The program either meets the standard or it does not. This is also true for program objectives in which seventeen measurable goals must be met for every case. Program supervisors are required to assure constant and accurate data entry of all program information. Accuracy and timeliness of the data provide a measure of the program's success or failure in achieving program objectives. Program supervisors must meet every new family within the first month of service and conduct joint home visits with each family each quarter. Quality assurance telephone calls must be conducted with each family every quarter. Case files must be reviewed constantly to assure that the required documentation is in place. Finally, program supervisors must meet with the Health Families Program Specialist each quarter for a file audit and program review. In June 2000, Petitioner took her first Family Medical Leave Act (FMLA) leave. She was out on FMLA leave for four weeks and two days, returning in July 2000. During this period of time, Petitioner gave birth to a live male infant. The child died while Petitioner was strapped to the table in the delivery room and hospital personnel dropped the infant. Quite naturally, this tragic event, over which she had no control, caused Petitioner psychological trauma and enormous grief. She also maintained that the lack of appropriate after-care at that time might have resulted in her subsequent need for FMLA leave and a hysterectomy, as more fully described below. CHS's FMLA policy was contained in its Employee Handbook. In 1995, Petitioner acknowledged, in writing, receipt of the Employee Handbook. In 1996, CHS's leave policies were amended, and a clear equal employment opportunity and anti- discrimination policy was added to the Handbook. Petitioner maintained that she had signed the receipt for the Handbook before the foregoing amendments. That testimony by Petitioner is credible, but it is also clear that Petitioner subsequently became aware of CHS's leave policy via explanations in a series of letters to her from CHS's Human Resources Department over the course of her second FMLA leave of absence, which began in November 2000. FMLA leave is calculated on a twelve-month rolling calendar period. Under the FMLA, Petitioner was guaranteed reinstatement to her former position as Program Supervisor I or an equivalent job with the same pay, benefits, terms, and conditions of employment as long as her total FMLA leave (including all leave periods) did not exceed twelve weeks in a twelve-month period. CHS characterizes all medical leave as FMLA leave if the employee is eligible for FMLA leave. CHS requires that accrued paid vacation and sick leave be utilized before utilizing unpaid FMLA leave. This allows the employee to draw full salary and continue to receive health insurance benefits as long as possible before having to resort to unpaid leave, but it means that FMLA leave, vacation leave, and sick leave are depleted simultaneously. CHS automatically offers any employee who is on FMLA leave for a serious health condition an opportunity to convert the leave to disability leave after his or her FMLA leave expires. Under this CHS leave policy, an employee does not have to be handicapped or disabled to qualify for disability leave. At all times material, Julie Ormond, Healthy Families Program Manager, was Petitioner's immediate supervisor. Ms. Ormond reported to Glenna Osborne. Glenna Osborne was the Director of Program Operations for CHS's Mid-Florida Division. She supervised three programs: Family Builders, Healthy Families, and Responsible Fatherhood. Ms. Osborne was in charge of 77 employees and 10 supervisors. Ms. Osborne has a Master's Degree in Human Development and 25 years' experience in management. On or about October 11, 2000, Ms. Ormond wrote a memo to two Healthy Families supervisors, one of whom was Petitioner. The memo detailed certain problems with both supervisors' areas: supervision duties, data entry requirements, and report completions. Ms. Ormond requested that the problems be corrected and in place no later than October 30, 2000. On November 3, 2000 and November 7, 2000, Ms. Ormond copied Ms. Osborne with memos sent only to Petitioner on the same dates, detailing that some of Petitioner's programs had serious problems, now including complete absences of some data entry, late data entry, and both failure to classify and inaccuracy of classification of some clients. There also were problems in Petitioner's area with meeting State requirements and registering childhood immunizations. Petitioner was instructed to resolve the problems in her area as soon as possible. Ms. Ormond also copied Ms. Osborne with a memo along the same lines, dated November 7, 2000, from another CHS employee, Jean Plescow. When data entry is incomplete or late, it is not always possible to readily determine whether the problem is just a delayed data entry or if there also has been an actual failure to accomplish the act, plans, staffings, trainings, and immunizations for which the data was supposed to be entered. Over time, as related more fully below, it appeared that there were more problems with Petitioner's job performance, and the performance of the staff she supposedly had trained, than merely a failure to transpose information to a computer from other records. Before her work problems had been resolved, Petitioner went out a second time on leave associated with a medical problem. It was Petitioner's affirmative duty to apply for leave initially and to seek extensions, if necessary, of any leave granted. Although Petitioner testified that she filled out all the vacation and sick leave forms necessary before going out on "medical leave"; that she left in October 2000; and that when she left, she fully intended to be back at work before her accrued vacation and sick leave ran out, the following facts are found upon the greater weight of the credible evidence as a whole. At Petitioner's request dated November 21, 2000, CHS again placed her on FMLA leave as of that date. Petitioner's last day of work before this second period of FMLA leave was November 19, 2000. On November 21, 2000, Petitioner informed CHS that she expected to return to work on or about January 23, 2001. Ms. Osborne's testimony was credible to the effect that she believed that Petitioner was going out on leave in November 2000 for surgery related to the June 2000 birth of Petitioner's child and not for surgery related to any prior automobile accident. Ms. Osborne is also credible that although she knew that Petitioner had been in an automobile accident in 1999, she never knew the extent of Petitioner's injuries from that accident and had never received any doctors' reports or any requests for accommodation of a handicap from Petitioner. Ms. Osborne did not perceive Petitioner as handicapped for any reason at any time between 1999 and November 19, 2000. Petitioner claimed that she only took the Program Supervisor I job on the condition "that if it were too hard, I could have my old [CHS] job back." Petitioner testified about how excellent she believed she performed her Program Supervisor I job prior to November 19, 2000, and that her work was up to date and commendatory when she took her second medical leave. She further stated that, as of November 19, 2000, she had accrued enough vacation and sick leave to cover the time she expected to be out on her second medical leave. Upon the facts found in Findings of Fact 23 and 24, it is further found that Petitioner never requested or received from CHS any workplace accommodations for a handicap dealing with her back or legs prior to her absence beginning in November 2000. Furthermore, all the medical excuses Petitioner supplied to CHS after November 19, 2000, support a finding that iron deficiency anemia from a uterine fibroid and a surgical hysterectomy with resultant recovery time caused Petitioner's absence from work after November 19, 2000, even though Petitioner supplied a different explanation to CHS's long-term disability insurance company after her leave ran out, as more fully discussed below. As Director of CHS's Mid-Florida Division's Human Resources Department, Linda Barry was responsible, in 2000-2001 for implementing and interpreting CHS's policies and procedures; benefits administration; approving transfers and promotions; approving and administering FMLA leaves and other leaves of absence; making termination decisions; and keeping apprised of CHS's hiring needs. On November 28, 2000, Ms. Barry sent, and Petitioner received, a letter advising that because of her June 2000 leave, only seven weeks and two days remained of Petitioner's FMLA leave and requesting that Petitioner complete and return the FMLA paperwork. In the meantime, Ms. Osborne assessed the North Lake staffing situation and documented her concerns in a November 30, 2000 memo to Ms. Ormand. Ms. Osborne noted some of Petitioner's program documentation was satisfactory and some was exemplary, but that there still existed serious problems with missing, incomplete, or inaccurate program documentation and inadequate training and supervision of Petitioner's team. Ms. Osborne requested that Ms. Ormand bring these deficiencies to Petitioner's attention as soon as Petitioner returned from FMLA leave, and that if Ms. Osborne's observations were confirmed by Ms. Ormand, the problems should be addressed at that time by Ms. Ormond in Petitioner's evaluation. During Petitioner's absence beginning November 19, 2000 and continuing into 2001, three other area supervisors performed their own full-time responsibilities and divided Petitioner's job responsibilities among themselves. Janie Counts, Sumter County Supervisor, traveled several times a week to provide fill-in supervision for two of Petitioner's FSWs. The South Lake Supervisor, Stephanie Ellis, provided fill-in supervision for two more of Petitioner's FSWs. Ms. Ormand traveled from Tavares to Leesburg to provide fill-in supervision for Petitioner's two remaining FSWs. If one of the three fill- in supervisors was ill or on leave, the remaining two fill-in supervisors oversaw Petitioner's two remaining FSWs, continued to cover their own teams, and covered the other absent supervisor's six FSWs. In the course of scrambling to carry on CHS's regular workload in Petitioner's absence, these three supervisors reported to Ormand and Osborne more problems they uncovered in Petitioner's operation. Ms. Counts sent Ormand and Osborne written reports. Her December 10, 2000 report reflected that Petitioner had left behind inadequate program documentation, had failed to prepare her supervision notes, had missing family support plan updates, had late data and missing data, and had failed to provide adequate training to her FSWs. Ms. Counts reported to Ormand and Osborne in a December 15, 2003 memo that she had uncovered even more problems that had existed in Petitioner's program before Petitioner went on leave. She also related that Petitioner had come to the office that day for the office's Christmas Lunch. CHS's FMLA leave policy required the existence of a "serious health condition." A doctor's certification supporting an FMLA leave is required. Physicians are provided an instruction sheet explaining the definition of "serious health condition", so they can categorize the patient's illness. Sometime in December 2000, Petitioner's doctor, Dr. Grousse, provided Ms. Barry with medical certifications to support Petitioner's then-current FMLA leave. Dr. Grousse listed Petitioner's condition as severe iron deficiency anemia and stated that she needed a hysterectomy soon. Dr. Grousse advised that Petitioner could not perform any work at that time. On December 20, 2000, Ms. Barry sent Petitioner a memo explaining her FMLA leave rights and requesting a medical certification from her surgeon. She also informed Petitioner of CHS's policy of applying vacation and sick leave concurrent with FMLA leave and stated the balance of Petitioner's FMLA leave remaining after her leave in June 2000 had been seven weeks and three days. She noted that as of CHS's December 15, 2000 payroll, Petitioner had 313.32 hours accrued vacation time and 124.22 hours accrued sick time. On December 27, 2000, Dr. Boggus provided Ms. Barry with medical certification to support Petitioner's FMLA leave. He indicated that Petitioner needed pelvic surgery, that she could not perform any work at that time, and that she would need six weeks off work after the surgery for recovery. He categorized Petitioner's condition as a "1" and "2", which meant that her condition required a stay in the hospital and a work absence plus treatment. He did not categorize her condition as "chronic" (requiring periodic treatment), nor did he categorize her condition as "permanent/long term" (requiring supervision). In the meantime, Petitioner's job duties still had to be covered and her team re-educated and brought up to grade if CHS's program objectives were to be met. Ms. Barry sent, and Petitioner received, a certified letter dated January 10, 2001, advising Petitioner that her FMLA leave would expire on January 12, 2001; extending her leave to January 22, 2001, as unpaid disability leave; advising her that she could continue to use any remaining accrued vacation time; and requesting that she submit a physician's statement for any leave she would require beyond January 22, 2001. The FMLA does not require that employees who are absent more than 12 weeks in a 12 month-period be returned to the same or a comparable position. Significantly, Ms. Barry's January 10, 2001 letter stated that although it was not guaranteed that Petitioner's Program Supervisor I position would be available when she was ready to return from leave, an effort would be made to place Petitioner in her previous position or a comparable one, or if no such position were available when Petitioner was ready to come back, she might be eligible for re- hire should a position later become available and her past work history warranted re-hire. The crucial point here is that CHS expressed no obligation to hold Petitioner's job for her after her FMLA leave ran out, but stated that it would try to give her a job in the same capacity when she returned. In fact, on January 12, 2001, Petitioner had her hysterectomy, which, according to Dr. Boggus's December 27, 2000 certification, meant that Petitioner would have then needed an additional six weeks, or until approximately February 23, 2001, before she could return to work in any capacity. However, Petitioner's FMLA leave expired on January 12, 2001. She did not contact CHS until after that date, and only then did she send in medical information about the date of her surgery. (See Finding of Fact 45.) By the time Petitioner's FMLA leave had expired on January 12, 2001, the fill-in supervisors had reported to Ms. Osborne that they were burned out with having to work their own full loads and also deal with the deficiencies left behind by Petitioner. One fill-in supervisor found it impossible to find the time to retrain the two FSWs assigned her from Petitioner's team while trying to maintain her own workload as a full-time supervisor. Another fill-in supervisor requested a transfer to a less demanding program and a demotion. By the middle of January 2001, Osborne and Barry had concluded that the undue hardship on the fill-in supervisors was so great that it was impossible to hold Petitioner's position open any longer. They felt to do so would seriously compromise the extent and quality of services that CHS could offer its clients and would jeopardize the well being of the other supervisors who were covering for Petitioner. Faced with Petitioner's not returning to work in any capacity for an indeterminate period of time, Barry and Osborne decided they had no choice but to replace Petitioner when her FMLA leave expired. According to Ms. Barry, Dr. Neil Finkler provided a medical certification update on behalf of Petitioner to her "toward the end of January 2001." Because Dr. Finkler's undated certification is referenced in her January 23, 2001 letter to Petitioner (see Finding of Fact 46), it is concluded that Ms. Barry received Dr. Finkler's certification before January 23, 2001, and probably received it by the January 22, 2001 date she had required in her January 10, 2001 letter for a reply from Petitioner. Dr. Finkler's certification advised that surgery had been performed on January 12, 2001, and that Petitioner would be incapacitated until February 23, 2001. Dr. Finkler categorized Petitioner as a "1", which is defined as requiring a stay in the hospital and a work absence plus subsequent treatment. Dr. Finkler did not categorize Petitioner's condition as chronic, requiring periodic treatment or as a permanent/long term condition requiring supervision. On January 23, 2001, Ms. Barry sent, and Petitioner received, a certified letter confirming that CHS had received Dr. Finkler's certification; notifying Petitioner that CHS had extended her leave to February 23, 2001, as unpaid disability leave, but that Petitioner could continue to use any remaining accrued vacation time; notifying her that as of CHS's January 15, 2001 payroll, her vacation balance was 269.54 hours; and advising that when Petitioner was ready to return to work she would have to provide a fitness-for-duty certification. The letter also stated: Because the operations of CHS require that vacant positions be filled, a disability leave of absence does not guarantee that your job will be available when you return. An effort, however, will be made to place you in your previous position or a comparable one. If no such position is available, you may be eligible for re-hire should a position become available for which you are qualified and your work history warrants rehire. The representation that an effort would be made to return Petitioner to her former position was probably untrue, given that Ms. Barry already knew that a replacement had to be hired soon. However, comparable positions might be available. (See Findings of Fact 48 and 49.) On January 26, 2001, Ms. Counts submitted a report of her fill-in supervision for Petitioner to Ms. Ormand. She reported that Petitioner's subordinates had not been trained by Petitioner on charting requirements and had not even been given certain forms. Effective January 29, 2001, after the automatic extension to January 22, 2001, given Petitioner in Ms. Barry's January 10, 2001 letter, had expired, but before the February 23, 2001 extension specified in Ms. Barry's January 23, 2001 letter, had been reached, CHS selected Belinda Henson to replace Petitioner as the Program Supervisor I for the Healthy Families Program in Lake County. Ms. Hensen would be on probation for six months, but she was considered a permanent employee as of her date of hire, to the extent that she would not be ousted from Petitioner's old Program Supervisor I position even if Petitioner chose to return to work. Although Petitioner was replaced as Program Supervisor I in her area on January 29, 2001, CHS still considered Petitioner to be an employee on leave status. CHS did not foreclose the possibility that it could have other Program Supervisor I openings available when Petitioner was ready to return from her leave. On February 16, 2001, Ms. Ormand sent a memo to Ms. Barry and Ms. Osborne, stating the problems with Petitioner's past job performance as expressed by the fill-in supervisors. When Petitioner's extended leave expired on February 23, 2001, Ms. Barry sent, and Petitioner received, a letter of that date, stating that CHS had not received any further medical certification to authorize leave beyond February 23, 2001, and that if Petitioner needed to continue her leave, she must provide an updated physician's statement showing such leave to be necessary. Ms. Barry's letter also informed Petitioner that her previous position had been filled, but Should you be able to return to work, an effort will be made to place you in a comparable position, should one be available. If no such position is available, you may be eligible for rehire as a new employee if you should apply for an available position in the future. On February 27, 2001, Petitioner faxed Ms. Barry a copy of a note from Dr. Boggus, advising, "No lifting over 5 lbs for one month. She may return 25 hours/wk for next one month." Dr. Finkler also provided a note stating that Petitioner could return to work on February 27, 2001, "but only work up to 25 hours/week with no heavy lifting for the next 1 month." There were no part-time openings in the Mid-Florida Division as of February 27, 2001. Petitioner's accrued paid vacation leave must have run out at about this time. Ms. Barry sent, and Petitioner received, a certified letter dated March 5, 2001, advising Petitioner that Ms. Barry had received the two doctors' notes restricting Petitioner to part-time work and that there were no part-time positions currently available in CHS's Mid-Florida Division. However, Ms. Barry extended Petitioner's leave for one month to March 27, 2001, the time period of her restriction to part-time work. Petitioner could have applied in other CHS divisions for any available part-time position for which she was qualified. The record is silent as to whether there were any such part-time positions available then, but it affirmatively appears that Petitioner did not inquire into, or apply for, any part-time positions that may have been available outside of the Mid-Florida Division. Petitioner testified that she drove to a CHS office in Orlando either to get copies of her records or to apply for a position (her purpose is not entirely clear from her testimony). Because the parking lot was undergoing excavation, she just drove away. This is not a reasonable explanation for not applying for a position.4/ As set out above, Petitioner had established a pattern of not taking affirmative action to timely supply the necessary medical information to Ms. Barry. Petitioner repeatedly had waited until her leave expired before submitting any medical documentation. Nonetheless, CHS still considered her an employee through March 27, 2001.5/ Petitioner testified that she made an unemployment compensation claim and CHS fought it. She further testified that she was denied her unemployment compensation benefits, but someone in the Governor's Office intervened and she was then paid one unemployment compensation check only. The testimony concerning the Governor's Office is uncorroborated and not credible. However, Exhibit P-7, shows that on January 3, 2002, an Unemployment Compensation Appeals Referee entered a "Decision", which reads, in pertinent part, as follows: Issues involved: SEPARATION: Whether the claimant [Petitioner] was discharged for misconduct connected with work or voluntarily left work without good cause (including cause attributable to the employing unit or illness or disability of the claimant requiring separation); pursuant to Sections 443.101(1), (9), (10), (11); 443.036(29), Florida Statutes; and Rule 38B- 3.020, Florida Administrative Code. LEAVE: Whether the claimant's unemployment is due to a leave of absence voluntarily initiated by the claimant, pursuant to Sections 443.036(28) and 443.101(1)(c), Florida Statutes. Findings of Fact: the claimant became employed by a children's home in August, 1994. Her last position was program supervisor. The employer was subject to the terms of the Family Medical Leave Act (FMLA). In June, 2000, the claimant used four weeks and two days of FMLA leave. That left a remaining balance of FMLA leave of seven weeks and three days to be used within 12 months. Effective November 21, 2000, the claimant again began FMLA leave which expired on January 12, 2001. At that time the claimant was unable to return to the full duties of her position because of a temporary disability. The employer had no part-time, light duty work for the claimant. The employer did not terminate her employment, but could no longer guarantee the claimant her position would be held open for her after the FMLA leave expired. The claimant underwent surgery on January 12, 2001. When she was released by her physician for full duty work, her position had been filled. The claimant filed an initial claim for unemployment benefits effective March 18, 2001. Conclusions of law: The law provides that a claimant shall be disqualified for benefits for any week of unemployment due to a leave of absence, if the leave of absence was voluntarily initiated by the claimant. A bona fide leave of absence exists only when the employer and claimant have agreed upon a specific term and the claimant is guaranteed reinstatement to the same or a substantially similar position upon expiration of the leave. The testimony in this case shows that the employer did not guarantee reinstatement to the clamant after her FMLA leave expired on January 12, 2001. Therefore, the claimant was not on a bona fide leave of absence after January 12, 2001, and she was not on a bona fide leave of absence when she filed her initial claim for unemployment benefits. When the claimant did not return to work upon the expiration of the bona fide leave of absence, she became separated from her employment. Because it was the claimant who did not return to her full duty position at that time, and not the employer preventing her from returning to her full duty position, the job separation is considered a voluntary leaving. The law provides that a claimant who has voluntarily left work without good cause as defined in the statute shall be disqualified from receiving benefits. "Good cause" includes only such cause as is attributable to the employing unit or which consists of an illness or a disability of the claimant requiring separation from the work. The term "work" means any work, whether full- time, part-time or temporary. The record and evidence in this case show that the claimant voluntarily separated from her employment on January 13, 2001, because she underwent surgery on January 12, 2001, and she was unable to return to work due to a temporary disability. Thus, the claimant became separated from her employment due to a disability requiring separation. Accordingly, it is held that the claimant voluntarily left her employment with good cause consisting of a disability requiring separation, and she is not disqualified from receiving unemployment benefits. Decision: The determination of the claims adjudicator dated April 16, 2001, is MODIFIED to hold that the claimant voluntarily left her employment with good cause consisting of a disability requiring separation. [Bracketed material and emphasis supplied] It is not certain from the record herein that the foregoing January 3, 2002, unemployment compensation decision ever became final, pursuant to Chapter 120, Florida Statutes. Even if final, and therefore binding on the parties, the decision was made under statutory definitions and tests different from those found in Chapter 760, Florida Statutes, and therefore, the decision is not binding in this case. However, the decision remains instructive as to matters of timeline, such as when CHS knew that Petitioner was claiming to be handicapped and from what cause. (See, below.) Clearly, it appears that Petitioner was not acknowledging any back and leg trouble to the unemployment compensation forum at least as late April 16, 2001, and probably not as of January 3, 2002. Accordingly, it is found, on the basis of Exhibit P-7, that on March 18, 2001, Petitioner filed an initial claim for unemployment compensation benefits. Exhibit P-7 shows that the claim was apparently defended through CHS's Winter Park Office, and the record is unclear as to when Ms. Barry, whose office was located in Jacksonville, or Ms. Osborne, whose office was located in Tavares, found out about the claim. (However, see Findings of Fact 67 and 74.) Because Ms. Barry had not received any further medical certification from Petitioner before Petitioner's leave extension expired on March 27, 2001, she legitimately could have terminated Petitioner's employment on the basis that Petitioner had neither returned to work nor requested an extension of her leave. Instead, On April 3, 2001, Ms. Barry sent, and Petitioner received, a letter advising that CHS had not received any further medical certification indicating Petitioner needed leave beyond March 27, 2001, and stating that Petitioner needed to provide medical certification if she had a continued medical need preventing her from returning to work or that required continued restrictions in the type of work she could perform. The letter further stated that if Petitioner were able to return to work, she must submit a fitness-for-duty certification. Ms. Barry requested that Petitioner submit any documentation regarding her medical status no later than April 16, 2001. On April 4, 2001, Ms. Barry received a telephone call from an attorney, Mr. Larry Colleton, requesting information on how Petitioner could apply for long-term disability insurance benefits. Ms. Barry did not believe Petitioner was eligible for long-term disability benefits because Petitioner had already been released for part-time work (see Finding of Fact 52), but she sent Petitioner an explanation of long-term disability benefits, including information that they applied to any employee who was disabled for six months or longer; an explanatory booklet; and forms to apply directly to the insurance company for that type of benefit. Ms. Barry copied Mr. Colleton with her explanatory cover letter to Petitioner. Exhibit P-7 shows Mr. Colleton as Petitioner's lawyer in the unemployment compensation case. The record is silent as to whether Ms. Barry knew, on April 4, 2001, that there was an unemployment compensation claim or of Mr. Colleton's involvement therein. Ms. Barry testified that she did not interpret Mr. Colleton's telephone request concerning long-term disability benefits to be notification of a handicap or a request for an accommodation for a handicap. On April 11, 2001, Petitioner faxed Ms. Barry a March 28, 2001 letter from Dr. Boggus advising that although Petitioner had been "completely and totally disabled from her usual occupation through March 23," she was now cleared to return to work. The fax also included a copy of Petitioner's completed application form for long-term disability benefits directed to CHS's insurance company. This form, signed by Petitioner, represented that she was disabled due to the 1999 automobile accident and the absence of any jobs within CHS that fit her limitations. Upon receiving the application for long-term disability benefits signed by Petitioner, Ms. Barry assumed that Petitioner would thereafter deal directly with CHS's insurance company to support her application for long-term disability benefits, including sending it a medical excuse dated after the March 28, 2001 release by Dr. Boggus, which Ms. Barry had received. Ms. Barry submitted the employer portion of the long- term disability paperwork to the insurance company on April 30, 2001. Exhibit P-7 shows that on April 16, 2001, an unemployment compensation claims adjudicator entered an order, which held Petitioner ineligible for unemployment compensation benefits. The undersigned is persuaded that this would be the last date reasonable to suppose that Ms. Barry did not know about the unemployment compensation claim. By letter dated May 9, 2001, the long-term disability insurance company sent Petitioner a letter requesting a statement from her doctor to support her long-term disability application. Ms. Barry received a copy of this letter. By letter dated June 4, 2001, the insurance company advised Petitioner that because Petitioner had previously been asked for proof of disability, and disability documentation had not been received, the insurance company was closing her file on long-term disability benefits. Ms. Barry received a copy of this letter, too. The last medical release that Ms. Barry ever received from Petitioner was Dr. Boggus's unrestricted return to work release, dated March 28, 2001, which Ms. Barry received on April 11, 2001. (See Finding of Fact 65.) By letter dated June 11, 2001, Ms. Barry notified Petitioner that she was being removed as an active CHS employee and that CHS was closing her personnel file because she had not submitted any doctor's certification indicating a medical need for a continued leave of absence and she also had not applied for any vacant open positions within CHS. This letter was the effective termination of Petitioner by Respondent. The decision to terminate Petitioner was made by Ms. Barry and Ms. Osborne. There is no persuasive evidence that, between March 28, 2001, when she was medically released to return to work and June 11, 2001, when she was terminated, Petitioner had applied for any CHS positions. Barry and Osborne each credibly testified that they had no reason to believe at any time material that Petitioner was handicapped, because Petitioner's physician, Dr. Boggus, had released her as being fully able to perform the functions of her job on March 28, 2001, and as of the date of her termination, Petitioner had never complained to Barry or Osborne that she believed that she was being discriminated against on any basis. On June 19, 2001, after the first unemployment compensation decision which apparently went against her (see Finding of Fact 67), Petitioner wrote Heidi Burkett, an employee in the same Jacksonville CHS Human Resources Office as Ms. Barry. The letter referenced Petitioner's unemployment compensation claim number. By this letter, Petitioner requested reinstatement to the position of "Program Supervisor in the Lake County area or an elevated position." This letter mentioned nothing about any handicap. On June 19, 2001, there were no Program Supervisor I openings in CHS, and Petitioner was not qualified for a position above Program Supervisor I. Petitioner testified that she had a "Paralegal Master's," but in Ms. Osborne's view, that degree would not render Petitioner eligible for any open elevated position. Petitioner would have had to have an advanced degree in a field related to childcare or in social work in order to fit the qualifications of any higher position with CHS. Furthermore, Petitioner would not have been promoted to an elevated position until her supervisors had an opportunity to work with her to make sure she had resolved the performance issues which were uncovered in her Program Supervisor I position while she was on leave. There is no evidence that Petitioner made any further contacts after her June 19, 2001 letter in an attempt to return to CHS, or that she applied for, or expressed any interest in, any positions below Program Supervisor I inside or outside of Lake County. The September 29, 2001 Charge of Discrimination was the first notice Ms. Barry had that Petitioner was claiming discrimination. Petitioner claims that after June 2001, she was gainfully employed as a teacher "for a while" by the Lake County School Board and/or a technical institute. She did not demonstrate that any accommodation for handicap was necessary in these employments. The record is silent as to her earnings since her separation from CHS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 4th day of March 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 4th day of March, 2004.
The Issue Whether Respondent, John R. Blum (Mr. Blum), violated the re-employment provisions set forth in section 121.091(13)(c)5.d., Florida Statutes (2013), and, therefore, must repay his Deferred Retirement Option Program (DROP) distribution and subsequent monthly retirement benefits.
Findings Of Fact The Division is the state agency charged with the responsibility of administering the Florida Retirement System (FRS). Mr. Blum was employed as a highway patrol officer with the Department of Highway Safety and Motor Vehicles (DHSMV). He made the decision to enter DROP, and, for the last five years of his employment with DHSMV, he participated in DROP. Prior to ending his DROP participation, Mr. Blum completed a Deferred Retirement Option Program Termination Notification, confirming he would terminate employment on May 31, 2013. The notification was also signed by the retirement coordinator for DHSMV confirming Mr. Blum’s employment termination date, and reads in pertinent part: In order to satisfy your employment termination requirement, you must terminate all employment relationships with all participating FRS employers for the first 6 calendar months after your DROP termination date. Termination requirement means you cannot remain employed or become employed with any FRS covered employer in a position covered or non-covered by retirement for the first 6 calendar months following your DROP termination date. This includes but is not limited to: part-time work, temporary work, other personal services (OPS), substitute teaching, adjunct professor or non-Division approved contractual services. * * * If you fail to meet the termination requirement, you will void (cancel) your retirement and DROP participation and you must repay all retirement benefits received (including accumulated DROP benefits). The form has been incorporated by reference into Florida Administrative Code Rule 60S-11.004(9). Mr. Blum terminated his employment with DHSMV on the agreed termination date of May 31, 2013. In July 2013, Mr. Blum began to work once again with DHSMV. He had applied and was hired to return as a reserve officer to work security at Florida turnpike stations. The Florida Highway Patrol provided Mr. Blum with access to the online system for payroll, and he was paid for his work through direct deposit from DHSMV, an FRS employer. Mr. Blum was under the mistaken impression that, when he worked the security for the turnpike stations, he was working for a private vendor. He had no intention of violating the termination of employment provisions. In September 2013, after working for almost three months, Mr. Blum was notified that he had violated the termination of employment provisions of DROP, and he ceased working as a reserve officer. On May 8, 2014, the Division sent a letter to Mr. Blum, notifying him that his DROP participation and retirement had been voided and that he must repay all retirement benefits, including his DROP accumulation. The total amount paid is $227,755.51, which the Division seeks to recover. He was also informed that his retirement account would be credited to reflect membership from March 2009 through May 2013. Mr. Blum has returned to work as a highway patrol officer, and his DROP application has been approved effective May 1, 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding that Mr. Blum violated the re-employment provisions of section 121.091(13)(c)5.d., Florida Statutes, and, therefore, must repay retirement payments in the amount of $227,755.51 to the Division. DONE AND ENTERED this 25th day of August, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2014. COPIES FURNISHED: John R. Blum 5050 Southwest Eleventh Place Margate, Florida 33068-4060 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Dan Drake, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Bruce Conroy, Interim General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has just cause to terminate the employment of the Respondent.
Findings Of Fact The Petitioner is the School Board of Lake County, Florida (Board)(Petitioner). It is charged with operating and managing the public school system in Lake County, Florida, otherwise known as the Lake County School District. The Respondent, at times pertinent hereto, was employed by the Board as a school guidance counselor at Sawgrass Elementary School. Her principal was Rhonda Hunt. During the 2005-2006 school year, the Respondent missed 71 days from her job. In the 2006-2007 year, she missed 97 days. In the 2007-2008 school year, the Respondent missed 87 days from work. The contract for a guidance counselor requires that they work for 221 days per school year. During these times, especially in the 2007-2008 school year, the Respondent had been making repeated requests for leave. Ms. Hunt, her principal, became concerned and in May of 2008 reported the situation about extensive absences, and leave requests, to Ms. Rebecca Nelsen, the Board's Supervisor of Compensation, Benefits and Employee Relations. In the 2007-2008 school year, when Ms. Hunt brought the issue to Ms. Nelsen's attention, the Respondent had missed work the number of days found above, which represented all the days in the school year from February 13th through the end of the school year. In the previous year, she had missed work from the middle of January through the end of the school year. Ms. Nelsen prepared a memo to Deke DeLoach, the Board's Chief of Human Resources, apprising him of the situation regarding the Respondent's absences. She explained to him the situation involving the excessive absences over a 5-year period. She explained to Mr. DeLoach that when an employee has been on extended unpaid leave that, according to Board policy 6.50, her return to employment is dependant upon a position being available. Therefore, while an individual is on extended leave, which is approved, their position becomes available to be filled at the decision of an individual school administrator. Moreover, unpaid leave, the status applicable to the Respondent's situation, must be approved in advance. An employee may not go off-duty on unpaid leave and then get approval for it at a later time. Approval must be requested in advance. A formal request must be made to the Superintendent, for the Superintendent's recommendation to the Board. Extended Illness Leave is a leave category that is required to be approved by the Board as well. Ms. Nelsen therefore explained to Mr. DeLoach that the Respondent had been on extended unpaid leave and, according to the above-referenced Board policy, her return to employment was dependent upon a position being available. Employees are required to have approval for some form of leave before they take leave or miss time from work. If an employee does not have approval for some form of leave and does not come to work, then under Board policy they are deemed to be absent without leave. If that is the situation, the employee can be terminated under Board policy. The School Board must have a recommendation from the Superintendent in order to be able to act on any sort of leave request. Under Board policies, an Extended Illness Leave is required to be approved by the Board. The school fiscal year ends June 30th. July 1, 2008, therefore, was the beginning of the new fiscal year for the 2008-2009 school year. The regular school session then began near the end of August 2008. Ms. Nelsen wrote to Ms. Chavous on August 19, 2008, explaining to her that she had been on unpaid sick leave numerous days, and giving her options to consider. Ms. Nelsen informed her that she must report to work or be considered absent without approved leave, that she could explain to her supervisor any accommodations that she may need, or that she could request Extended Illness Leave. That communication, from Ms. Nelsen to Ms. Chavous, references a July 29, 2008, request for sick leave. Ms. Chavous completed the July 29, 2008, request for sick leave on a Request for Leave of Absence form, which is the form required to be completed by employees who are requesting any kind of leave from the School Board. The July 29, 2008, leave form depicted a request for leave from August 4, 2008, through August 19, 2008. The reason for the leave requested was indicated as "Illness of self.” The Respondent did not have any sick leave available to her at that time. In the 2008-2009, school year, the Respondent was not eligible for leave under the Family Medical Leave Act. This was because she had not worked enough days in order to trigger eligibility under that law. This leave request was denied because the Respondent was on unpaid sick leave the prior year, had missed 87 days, and had never offered an explanation for her need to use sick leave. Therefore, the Board had no basis on which to approve the additional leave request and the Respondent's approved leave ended June 30, 2008. Any leave that the Respondent would have received for any extended illness would have been for the previous school year which was over at the end of the fiscal year, June 30, 2008. Ms. Nelsen gave the Respondent two options in her August 19, 2008, letter: To report to work or be considered absent without approved leave, or To submit a leave request form asking for extended illness leave for the remainder of the year. On August 28, 2008, a request was faxed from the Respondent seeking extended illness leave. The attached doctor's note did not explain the nature of the medical situation or condition, in terms of providing justification for the leave requested. The Respondent submitted a leave request form with that August 28, 2008, request. It did not confirm that she was asking for extended illness leave for the school year. Instead she requested leave from August 4, 2008, until October 30, 2008. Since School Board policy required the Respondent, in this situation, to request leave for the remainder of the school year, Ms. Nelsen sent an e-mail to the Respondent telling her that she had no available sick leave to use and again telling her that she had the option to either report to work or to request an extended illness leave for the remainder of the year. That communication was sent on August 29, 2008, the day after the Respondent faxed the form requesting leave through October. The Respondent then sent Ms. Nelsen another leave request form in response to the August 29, 2008, e-mail. It again requested leave from August 4, 2008, through October 30, 2008. On September 9, 2008, a letter was sent from the Superintendent to the Respondent, explaining that the Respondent had not reported to work and that she had not requested extended illness leave. Consequently she was informed that she was now considered “absent without approved leave” and would be recommended to the School Board for termination of employment. When the Superintendent sent the letter to the Respondent, on September 9, 2008, the Respondent was not on approved leave. She was absent without leave under the terms of the School Board policy. Pursuant to that policy she was therefore subject to being terminated. Ms. Nelsen received three leave request forms from the Respondent, none of which requested leave for the remainder of the school year, and none of which gave an explanation for the basis of the medical condition. The Respondent's response to these facts was her statement to the effect that "[I]t was just always told to me that you can't request for more leave than what your doctor has put on the form. So, therefore, that's why I put the dates there." She also acknowledged that sometimes she does not remember some things or doesn't respond as fast as she should. Therefore she simply stated that she believed, in effect, that she had submitted everything that she could and had explained her situation to the best of her ability at the time. The collective bargaining agreement between the Lake County School District and the Lake County Education Association includes the position of guidance counselor. That contract references the Board policy which makes it a terminable offense to be absent without leave. The recommendation to the Board, prior to the Respondent making a Request for Hearing, was that she be terminated for being absent without leave. The Respondent's prior leave had expired at the end of the 2007-2008 school year. When the first day of school started in the current school year of 2008-2009, the Respondent did not report to work. The Respondent probably would have been unable to work because of her illness before January 2009. She would therefore have missed all of August, September, October, November, and December.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED that a Final Order be entered by the Lake County School Board finding that the employment of the Respondent, Latonya Chavous, be terminated for just cause. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 26th day of June, 2009. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Latonya Chavous 136 Desiree Aurora Street Winter Garden, Florida 34787 Dr. Susan Moxley, Superintendent Lake County Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto net Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this | a day of Quis, Us? ‘ , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 Jul 11 2009 11:41 a7/11/2889° 12:23 9549617454 PACK-SHIP&BEYOND PAGE 91/03 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GLORIA MARSHALL, Petitioner CASE NO: 08-3716 JUDGE ARRINGTON v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT. Respondent. / PETITIONER’S AMENDED NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PETITIONER, GLORIA MARSHALL, through undersigned counsel, hereby files this AMENDED PETITIONER’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE, on the following grounds: 1. Petitioner Marshall is not working for the employer since June of 2008, when she retired after a long career as an employee of the Broward County School Board. Most of the documents to be used in this petition are already in possession of Respondent and the attorney for Petitioner. 2. Petitioner patiently and conscientiously worked as an adult ed teacher from 1981 through 2005, a period of some twenty four years. EXHIBIT att Jul 11 2009 11:41 @7/11/2889 12:23 9549617454 PACK-SHIP&BEYOND PAGE 62/83 3. In view of the relationship between the Repondent and Petitioner, who has been enrolled several times in the FRS, Petitioner contends that the Respondent exercise its fiduciary duty to act in the best interests of the member by not opposing this dismissal without prejudice. 4. Petitioner contends that no prejudice to Respondent will result. 5. No expenses have been incurred thus far other than the transmission of employment records by the Respondent to undersigned counsel, and those will not change. If a plan has been proposed for the case by Respondent, that plan can be laid aside and will serve the same purpose in the future. 6. In light of the circumstances which prevail, to insist on the prosecution of this petition at this time will not serve the interests of justice. 7. Petitioner has indicated that she is unable to assist in this petition until the month of December 2009. 8, In addition, the goal sought in these proceedings is a very precious one, that is, a pension and social security fund which will influence the comfort or lack thereof of this petitioner’s last years, and is worthy of the Court’s indulgence in acknowledging this dismissal without prejudice. BASED ON THE FOREGOING recitation of facts, Petitioner files this ‘ Amended Notice of Voluntary dismissal without prejudice. Jul 11 2009 11:42 97/11/2009 12:23 9549617454 PACK-SHIP&BEYOND PAGE 43/03 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been fax-filed with the Department of Administrative Hearings and e-mailed to 850 922 6312, to Larry Dz. Scott, Esq., Asst. General counsel to DMS, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950 Eleventh day of July, 2009. LAW OFFICE OF JANE M. LETWIN Attorney for Petitioner: Florida Bar Number 990329 5426 SW 25" Avenue, Fort Lauderdale Fl 33312 Phone: 954 245 8495: Fax: 954 301 8401 E-mail; Janeletwintv@aol.com By * ou Jane M. Letwin
Findings Of Fact Petitioner, Marshall T. Hazlewood, was an employee of respondent, Department of Transportation (DOT), from April 12, 1972 until July 14, 1983 at the Pinetta Toll Plaza in Satellite Beach, Florida. He served in the positions of toll collector, shift supervisor and manager I at that facility. In April, 1983 Hazlewood advised his supervisor that he would retire in July, 1983. By this time, Hazlewood had accumulated annual leave in excess of 240 hours, as well as an undisclosed amount of compensatory time and sick leave. His supervisor asked him not to use his annual leave in excess of 240 hours until July, or just prior to his retirement, because of a shortage of other personnel services (OPS) money for that fiscal year. In other words, if Hazlewood used his leave in April, May or June, the supervisor would necessarily have to use current fiscal year OPS funds to hire a temporary replacement. Hazlewood acquiesced and continued to work until June without taking annual leave. On June 16, 1983 Hazlewood put in an annual leave slip requesting annual leave (except for July 4, a holiday, and his personal holiday) from June 27 through July 14, 1983, his retirement date. This brought his total annual leave down to 238.50 hours as of the close of July 14, his date of retirement. The leave slip was approved by his supervisor and forwarded to the bureau chief in Tallahassee. He also spoke by telephone with the coordinator for the Tampa section and the assistant bureau chief in Tallahassee concerning his retirement. Whether he told them of his plans to use annual leave the last few weeks of employment was not disclosed. In any event, no one questioned his leave slip. When he retired on July 14, 1983 Hazlewood received his normal pay plus compensation for unused sick leave. He also received a warrant in the amount of $1,005.68 which represented compensation for 238.50 hours of unused annual leave. Because the pay system at DOT is computerized, and not manually checked until several weeks later, Hazlewood received his final pay without a hitch. Later on, after a manual review of his file was made, it was learned that Hazlewood's final pay had been improperly computed. DOT requested a return of the warrant, and apparently reissued a second warrant which was $324 less than the first. That prompted the instant proceeding. According to Rule 22A-8.10(4)(c), Florida Administrative Code, promulgated by the Department of Administration (DOA), and which must be adhered to by DOT, an employee cannot be paid for leave after his "last official day of employment." An employee's last official day of employment is interpreted to mean when he is physically present on the job. The parties have stipulated that Hazlewood's last official day of employment was June 26, 1983, when he actually reported to work. The DOA also interprets the rule to prohibit the taking of annual leave in conjunction with an employee's separation from service. This includes the taking of such leave merely to use up sick leave or to bring one's total annual leave down to the maximum reimbursable amount of 240 hours. These interpretations were disseminated by DOT to all of its field offices, including the chief of toll facilities, as early as October, 1981, and are generally described on page 21 of the DOT Employee Handbook which Hazlewood had. They are also expressed in "Interpretation of Attendance and Leave Rules" issued by the DOA. After determining Hazlewood's last date of employment to be June 26, his balance of annual leave was properly reduced to 176 hours rather than 238.50 hours. This balance was arrived at by deducting those hours of leave improperly used during the pay period ending July 14, 1983, and for which he had already been paid, from the 240 maximum hours one can accumulate at date of retirement. The DOT accordingly reissued Hazlewood a check for 176 hours of unused leave, which was $324 less than the amount previously given to him. This was actually less than the amount DOT should have deducted, for it did not seek to recover excess payments during the two-week pay period ending June 30, 1983. Petitioner contends that because no one advised him that taking leave in the manner he did was improper, it is unfair to now penalize him for doing so. He also points out that his supervisor approved the leave slip and was the one who suggested he delay taking leave until July because of budgetary problems. He considers it morally wrong for DOT to treat him in the manner that it has. The DOT acknowledged that the leave slip was approved, but stated the supervisor was apparently unaware of existing Department policy. It contends that all non Tallahassee offices are periodically advised of personnel rules, and that the Hazlewood case was one of a few that sometimes occurs. After the Hazlewood error came to light, DOT issued another memorandum on September 1, 1983 to all personnel explaining the policy for leave time upon separation from service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Marshall T. Hazlewood to have reinstated $324 in payments for unused annual leave be DENIED. DONE and ENTERED this 8th day of March, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1984. COPIES FURNISHED: Mr. Marshall T. Hazlewood 333 McLeod Drive Cocoa, Florida 32922 Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether Respondent employer is guilty of an unlawful employment practice (discrimination under Section 760.10, Florida Statutes) against Petitioner on the basis of his race (Black/African-American), handicap, or retaliation, and if so, what is the remedy? Although cases arising under the federal Americans With Disabilities Act (ADA) may be instructive for interpreting and applying the handicap provisions of Chapter 760, Florida Statutes, Petitioner's claim under ADA and any allegations of libel and slander are not within the jurisdiction of the Division of Administrative Hearings.
Findings Of Fact Petitioner, Lawrence James, Jr., is a Black/African- American. Respondent, The Alachua County Department of Criminal Justice Service, is an "employer" within the definition in Section 760.02(7), Florida Statutes. Respondent operates the Alachua County Jail. Respondent maintains a paramilitary command, advancement, and ranking system for its employees. Petitioner began his employment with Respondent as a Correctional Officer and rose to the rank of Sergeant. On March 2, 1994, an inmate escaped from the Alachua County Jail during the evening shift. As a result of the inmate's escape, several correctional officers were disciplined. Petitioner was disciplined by a reduction in rank April 26, 1994. (P-37) There were allegations that harsher discipline had been meted out to the Black/African-American officers, and the matter was arbitrated, pursuant to the union collective bargaining contract. As a result of the arbitration, in the summer of 1994, it was recommended that Petitioner be returned to his position at the Jail with restoration of rank, but without any back pay. However, at the time of that recommendation, Petitioner already had been terminated for "a non-related infraction of county policy." (P-37) The "non-related infraction of county policy" reason for Petitioner's 1994 termination was not established on this record, but neither was any discriminatory reason proven.2 After Petitioner's 1994 termination, further proceedings ensued, and Petitioner was ultimately restored to his rank and position at the Jail. As part of this restoration, it was agreed the Respondent employer would conduct training and re-orientation sessions for Petitioner, since he had not actively been performing his duties at the Jail for approximately two years. The present case only addresses the discrimination Petitioner allegedly suffered due to race, handicap, or retaliation concerning his leave requests in 1996, and his 1997 termination for unauthorized absence. After his second successful arbitration(s) and/or grievance procedure, Petitioner was eligible to return to work on February 19, 1996. He did not return on that date. Respondent ordered Petitioner back to work on March 13, 1996, at which time Petitioner requested, and was granted, leave under the Family Medical Leave Act (FMLA). It is not clear if Petitioner ever made Respondent aware that he suffered from high blood pressure, but from the evidence as a whole, it is found that Petitioner notified Respondent in March 1996, that he was suffering from a prior on- the-job injury to his back, diabetes, and depression. Diabetes, as experienced by Petitioner, is a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. Clinical depression, as experienced by Petitioner, is a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. Petitioner contended at hearing that his clinical depression in 1996 was due to his 1994 demotion and termination and the procedures to get his job back and also due to the hostile work environment he anticipated he would face if he returned to work daily in 1996 with people whom he perceived as having lied about him and who had tried to terminate him. It should be noted that Petitioner did not clearly include "hostile work environment" in either his 1998, Charge of Discrimination or his 2000, Petition for Relief. The Florida Commission on Human Relations only considered and referred the instant case upon allegations of discrimination on the basis of race, handicap, and retaliation. From Petitioner's description of his back ailment, it is found that condition also constituted a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. From Petitioner's description of how his back injury affected his daily life and job performance, it is very doubtful that Petitioner was able to physically fulfill the requirements of being a jailor at any time in 1996 until he was terminated in 1997. No evidence was presented with regard to the workers' compensation consequences of this situation. By an April 1, 1996, letter, Respondent's Interim Director of Criminal Justice Service, Richard Tarbox, informed Petitioner that he had exhausted his sick leave credits as of the pay period ending March 31, 1996; that based on Respondent's records, Petitioner would exhaust the balance of his accrued sick leave at the rate of forty hours per week during the pay period ending May 12, 1996; that he was expected to know his available accrued leave credits and to contact his immediate supervisor at least one week prior to the expiration of the current leave period to request leave without pay if he anticipated not returning to work; and that he had been placed on FMLA leave for an indefinite period, not to exceed twelve weeks, which would expire on June 6, 1996. (R-30) The April 1, 1996, letter specifically informed Petitioner that failure to come to work or contact Respondent could be considered abandonment of his position. (R-30) The foregoing instructions concerning "abandonment of position" parallel Alachua County's Personnel Regulations and Disciplinary Policy, hereafter sometimes referred to collectively as "personnel regulations." (P-1). Chapter XIX. 3. OFFENSES AND PENALTIES; c. Group III Offenses No. 8, at pages 5-6, of the personnel regulations had existed prior to Petitioner's 1994 termination, and was in effect at all times material. It provided, Absence of three consecutive work days without proper authorization at which time the employee is considered to have abandoned the position and resigned from the County's employ. The personnel regulations also provided in Chapter XIX. 3. OFFENSES AND PENALTIES; a. Group I Offenses No. 8, at pages 3-4, that the following offense would subject an employee to progressive discipline: Absence without authorization or failure to notify appropriate supervisory personnel on the first day of absence. (Emphasis supplied). This regulation also had remained unchanged since Petitioner's last employment with Respondent in 1994, and was in effect at all times material. Progressive discipline for the first such offense was written instruction, counseling and/or one-day suspension. For the second occurrence, one to five days' suspension was specified. For the third occurrence, up to five days' suspension or discharge was specified. These provisions also had remained unchanged since Petitioner's last employment with Respondent in 1994 and were in effect at all times material. Petitioner was also familiar with the long-standing progressive discipline system of Respondent's personnel regulations. Basically, this system required that discipline first be proposed in writing by a superior. The proposed discipline would go into effect and become actual discipline if the employee did not appear at a hearing to dispute the charges or the proposed discipline. If the employee prevailed at the hearing, the proposed discipline would be rescinded or altered. If the employee did not prevail, the proposed discipline would be reduced to writing in another document, and the employee then had the option of filing a grievance pursuant to the union collective bargaining agreement or of appealing through the personnel system to a citizens' board. While Petitioner had been absent in 1994-1996, a new requirement had been added to the personnel regulations, under Chapter A-299, which required that employees who planned to be absent, must notify their immediate supervisor no later than 30 minutes from the time they are scheduled to report for work. (Emphasis supplied) The "immediate supervisor" or "appropriate supervisory personnel" in Petitioner's situation would have been the lieutenant on his shift. However, Petitioner and Lt. Little, who became his supervisor, concurred that the custom at the Jail always had been to require that employees contact the shift sergeant on the shift preceding an emergency absence, or if that were not possible, to contact the employee's own shift sergeant or anyone else on that shift. Jail custom also provided that the employee who was going to be absent could rely on any person on his shift to deliver his oral message to the employee's supervising lieutenant and that approval or disapproval paperwork would be handled by that lieutenant after notification. On June 6, 1996, Petitioner still had not returned to work. Instead, he requested leave without pay until June 15, 1996. Respondent granted Petitioner's request. This constituted an accommodation of Petitioner's handicap(s) in that he had no remaining earned leave or entitlement to FMLA leave, yet his employer held his position open for his return. On or about June 10, 1996, Anthony F. Greene, Ph.D., a clinical psychologist at Vista Pavilion, a free-standing psychiatric facility, released Petitioner to return to work. He wrote to Respondent's Risk Manager that Petitioner continued to have problems with depression, which might prove "volatile" in a work environment with superiors Petitioner believed had harassed him by terminating and blaming him for the 1994 escape. At approximately the same time, Richard Greer, M.D., medical specialty unexplained, also released Petitioner to return to work, upon the conditions that Petitioner continue to see Dr. Greene on a weekly basis and continue to take his prescriptive medications. By a July 17, 1996, letter (P-4), Interim Director Richard Tarbox notified Petitioner to report for work at the Jail on the evening shift of July 22, 1996. The letter required Petitioner to continue his sessions with Dr. Greene; to continue to take his prescriptive medications; and to take the re- training and re-orientation specified as a result of the resolution of his 1994 termination and return to work. (See Finding of Fact 7.) The July 17, 1996, letter also included the sentence, We are in the process of contacting Dr. Greene to establish a procedure to verify that you continue your sessions with him. Petitioner interpreted this sentence as the employer's promise "[T]o get all my leave slips, find out when I was going to the doctor, my mental condition, and also my medical condition." (TR-Vol.II, pages 175-176) Petitioner's interpretation of this sentence was unreasonable in light of its express language, the context of the remainder of the July 17, 1996, letter, the instructions of the April 1, 1996, letter (See Findings of Fact 16-17), and what Petitioner already knew of the County's personnel regulations and/or the Jail custom requiring him to call in and/or apply for leave to be subsequently approved or disapproved by his supervisor. Nothing in the July 17, 1996, letter altered the requirements of the personnel regulations or the April 1, 1996, letter. Petitioner bore the responsibility to ask for medical leave sufficiently in advance of his absences. On July 22, 1996, Petitioner reported for work at the Jail as instructed and was assigned to an evening shift supervised by Lt. Stover. According to Sgt. Babula, Petitioner also worked under Shift Sgt. Withey at some point in July 1996. However, by July 1996, Petitioner was an insulin- dependent diabetic. He needed to self-administer a shot of insulin each morning and night. To ensure ideal spacing of these two shots, Petitioner almost immediately requested to work the day shift. Respondent accommodated this request concerning Petitioner's handicaps and assigned him to the day shift under Lt. Little and Sgt. Babula, as shift sergeant. Petitioner claimed his handicaps were not accommodated by Respondent, but in addition to approving leave for him from February 19, 1996, to July 22, 1996, not replacing him during that period, and the change of shift made in July 1996, at Petitioner's request, Sgt. Babula testified to approving special shoes for Petitioner due to his diabetes. By September 1996, Petitioner again had used up all of his accrued leave. Accordingly, he had to ask for leave without pay to visit his various doctors, including Dr. Greene. On September 9, 1996, during a therapy session, Petitioner told Dr. Greene that he had been threatened on the job and that he was pursuing resolution of the incident through appropriate channels. The same day, Dr. Greene wrote to Lt. Little, telling him of the threat. The nature of this alleged threat or who made it was not stated in Dr. Greene's letter or at hearing. The letter cleared Petitioner to return to work September 12, 1996. This out-of-court statement to his psychotherapist at that time does not establish the truth of the statement or that Petitioner's superiors made the alleged threat. Also, the threat, if one existed, could not have related to Petitioner's written leave requests, because Petitioner's earliest dispute about leave did not occur until September 13, 1996. (See Finding of Fact 41). The September 9, 1996, date was not related by testimony to any oral or written request for leave or any disciplinary matter in evidence. Petitioner testified to having been threatened on the job sometime prior to September 9, 1996, but he never testified what the threat was, why the threat was made, or by whom the threat was made. Petitioner's witness, Alfred Dickerson, also is African-American. He testified generally that it was "pure hell" at the Jail for anyone who, like himself and Petitioner, had been disciplined due to the 1994 escape and who had prevailed in the resultant grievance activities, but he could not remember any specific incidents involving Petitioner. Moreover, Mr. Dickerson was out of the Jail, on workers' compensation leave, from May 1996 to October 1997, the whole of the material time frame for this case.3 On September 16, 1996, Petitioner submitted an "after the fact" request for leave without pay to Lt. Little, his supervisor, for the previous dates of September 13 and 15, stating thereon that he had been ill those days and that the request was being made because his request to work his days off to make up for the 16 hours of leave he had used on September 13 and 15 had been denied. The request does not specifically mention "flex time." (P-6) "Flex time," as described by both Petitioner and Lt. Little, would have permitted Petitioner to work his days off, instead of taking time off without pay to make up time used to go to his doctors on days he was scheduled to work. However, if an employee asked to use flex time in this way, another employee had to trade days with him, and the exchange would be worked out by the supervising lieutenant. On October 1, 1996, Petitioner was given a "Letter of Warning" by Lt. Little. The Warning reflected that Petitioner's advising a sergeant other than his immediate supervisor, Lt. Little, on September 24, 1996, that he was not coming to work until some personal matters were taken care of, was insufficient notice and was being treated as "absence without authorization" in violation of the personnel regulations. It also stated, It has been standard practice and understood that you must notify your immediate supervisor . . . please be advised that any further violations of this nature may result in docked pay and progressive disciplinary action . . . Attached to this document was a Notice of Disciplinary Action, also prepared October 1, 1996, stating, Disciplinary action taken as a result of the Notice of Proposed Disciplinary Action dated blank not filled in. (Except for WARNING) WARNING (Reasons for warning): Violation of Alachua County Personnnel Regulations, Chapter XIX, Section 3, a., Group I, Offense No. 8 'Absence without authorization'. (P-8) The same document notified Petitioner that he had a right to appeal the Warning pursuant to either the personnel regulations or the grievance procedure in the collective bargaining agreement, as appropriate. Petitioner did not acknowledge receipt of this latter document until October 7, 1996. (P-8/R-19) Also on October 1, 1996, Petitioner submitted an "after the fact" request for leave without pay for September 23- 26 and for September 29-30, to Captain King. The reason for Petitioner's absence September 23-26 was not stated on the formal request, but Petitioner did again state thereon that his request to "flex" his days off had been denied, presumably by Lt. Little. The time for September 29-30 was requested for "personal business and emergency family leave without pay" due to his mother's seeing a doctor about her detached retinas. (P-7) Respondent is not obligated under Chapter 760, Florida Statutes, to accommodate Petitioner's family's handicaps.4 On October 21, 1996, a "Notice of Proposed Disciplinary Action" was issued by Lt. Little, apparently covering the same date, September 24, 1996, as his October 1, Warning, and adding other dates. The reasons for the proposed discipline given in this October 21, 1996, Notice differ slightly from the content of the October 1, Warning. The October 21, 1996, Notice related that on September 23, Petitioner had spoken to Captain King and Lt. Little, and because his request for leave had been made in advance, Petitioner had been granted the day off; that on September 24, Petitioner had failed to report to work and failed to request an extension of leave, and he was therefore considered to be "absent without authorization" for September 24, 1996. The October 21, Notice further stated that on September 25, Petitioner had called Captain King, requesting leave without pay for September 25 and 26, and because Petitioner had requested leave in advance, Captain King had granted the request covering those two days, but that on his October 1, leave request (see Finding of Fact 44) Petitioner had included two more days, September 29 and 30, which had not been previously authorized. Finally, the October 21, Notice indicated that on September 30, Petitioner had called Lt. Stover to say that he would be reporting to work as soon as he was through testifying to the Grand Jury that afternoon, and that his failure to request leave in advance was being treated as "absence without authorization and failure to request leave without pay in advance." As of this October 21, 1996, Notice, the proposed disciplinary action became suspending Petitioner without pay. Petitioner was offered an opportunity to contest the proposed disciplinary action at a hearing on November 19, 1996. Petitioner acknowledged receipt of this document on October 24, 1996. (R-21) On October 22, 1996, Petitioner wrote to the Interim Director of the Jail, Richard Tarbox. In his letter, Petitioner complained that he had not yet received the agreed re- orientation and re-training. He also discussed his medical problems, including problems with recent changes in his medications and his five-year-old back injury. He requested flex time and related that his life had been threatened by employees on the job (see Findings of Fact 37-40), and that Lt. Little had been informed of the threats and flex time request, but the letter again did not indicate by whom Petitioner was threatened or why. (P-10) Despite Petitioner's after-the-fact written requests for flex time, Lt. Little had no recollection of Respondent ever asking him for flex time. There is no evidence that Lt. Little, Mr. Tarbox, or any other representative of Respondent contacted Petitioner concerning the alleged threat against him or specifically addressed the issues of re-orientation/re-training or flex time. On October 25, 1996, Dr. Greene also wrote Mr. Tarbox. He described Petitioner as cooperative and not evidencing any inappropriate behavior. He reported that Petitioner had voiced no homicidal or vengeance ideation to him. He felt that Petitioner's supervisors' requirement that Petitioner use leave to attend the mandatory therapy sessions with him constituted a paradox and a stressor for Petitioner. He felt that other stressors were the employer's failure to offer re-orientation/ re-training to Petitioner and the employer's failure to contact him, Dr. Greene, to verify treatment purposes and schedules. Dr. Greene requested that Mr. Tarbox clarify Petitioner's treatment and work status to both him and to Petitioner in a timely manner because not doing so was exacerbating Petitioner's physical condition, headaches, and diabetes. He further stated that he could release Petitioner for work without further psychological treatment and that further psychological treatment was not necessary to ensure Petitioner's fitness for work or to prevent his being a risk to others, but that Petitioner would continue in therapy for other purposes. (P-11) Neither Mr. Tarbox nor any other representative of Respondent specifically replied to Dr. Greene's October 25, 1996, letter. However, all leave disputes pending on that date were addressed in a November 22, 1996, letter to Petitioner from Captain King. (See Findings of Fact 57-59.) On October 31, 1996, Petitioner submitted an "after the fact" request for eight hours leave without pay for leave he had taken on October 30, 1996, for "emergency dr. app't for work related injury, and lab work for diebetic [sic] condition." (P-14) At some point, a leave form for eight hours leave without pay on November 9, 1996, was prepared. It indicates that Petitoner was "unavailable to sign." This form was disapproved by Lt. Little and by Mr. Tarbox on November 12, 1996. Apparently Petitioner only signed the request on November 26, 1996. (P-21) On November 14, 1996, Petitioner submitted a request for two hours leave without pay for November 15, 1996, for "work related condition, Dr. Greene." (P-15) On November 19, 1996, Petitioner submitted a request for two hours leave without pay for November 22, 1996. The request was approved by a supervisor on November 19, 1996. (P-17) On November 22, 1996, Captain King issued a "Letter of Warning" to Petitioner. It stated that on November 19, 1996, a disciplinary hearing had been held (see Finding of Fact 47) regarding the October 21, Notice of Proposed Disciplinary Action, addressing Petitioner's absences on September 29-30, 1996, and that because Petitioner had proven that he had attempted to contact his supervisor in advance of his absence, the September 29 violation was being withdrawn. With regard to the September 30 violation charged, it was found that Petitioner had contacted Lt. Stover and informed him that Petitioner would return to work after testifying before The Grand Jury, and since Petitioner had not returned to work on that day after testifying, he was being found guilty as charged for violation of Alachua County Personnel Regulations, Chapter XIX, Section 3. a. Group I, Offense No. 8, "Absence without authorization and failure to request leave without pay in advance." The November 22, 1996, letter went on to warn Petitioner that future violations would be more carefully scrutinized for strict adherence to the policy of notification and that failures on Petitioner's part might result in progressive disciplinary action being taken. (P-20) Because prior discipline had been overturned or rescinded, the November 22, 1996, Letter of Warning was technically Petitioner's first violation/discipline. Also on November 22, 1996, Petitioner submitted to Lt. Little a leave request form, dated the same day, labelled "FOR INFO.," with supporting documentation, including Dr. Hunt's certificate showing Petitioner had been treated on November 4, and November 22, 1996, had office management of HTN/NIDDM hematuria, a pending IVP and urology consult, and would need to be seen again by Dr. Hunt in 4-6 weeks. The language of one attachment showed Petitioner "is under Dr. Hunt's continual care," but nothing specified any period of time Petitioner intended to take off from work for the pending consultation or any other purpose. (P-19) Petitioner testified that his November 22, 1996, leave request was not intended to request any leave at all when he submitted it, but that it should have alerted his supervisors that Petitioner had a growth between his legs that was potentially malignant and that he needed an operation sometime in the future. A reasonable person would not have concluded this from the four corners of the November 22, 1996, written request with attachments dated for past medical appointments. Petitioner also testified that by submitting the November 22, 1996, leave request "in blank" and explaining orally to Lt. Little what he intended to do was his effort to comply with the requirement that he ask for leave in advance of taking it. This testimony shows that Petitioner at this point understood the employer's prior instructions to request leave in advance. Apparently, Petitioner envisioned only having to phone in to get any member of his shift to fill in the blanks on his November 22, 1996, request form, but he admitted he had never before used a blank leave request in this way. Petitioner further testified that he had told Mr. Tarbox and other supervisors at a meeting (probably one of his disciplinary hearings) before Christmas 1996, that he "did not know how long he could work." While this representation of Petitioner is credible and it may be reasonably inferred that Mr. Tarbox understood Petitioner was debilitated to some degree by the growth and might need an operation sometime in the near future, it does not logically follow that all those hearing Petitioner at that time understood that his oral statement related to the November 22 blank leave request which had attached to it only information about past doctors' appointments and potential, undated, future consultations. Petitioner's vague statement at the meeting/hearing did not comply with the letter of the personnel regulations nor the custom at the Jail for requesting leave. The blank November 22, 1996, leave request marked "FOR INFO" also did not comply with the letter of the personnel regulations nor the custom at the Jail. There is no requirement that Respondent grant Petitioner an open-ended request for leave or one that specifies no time period at all. Petitioner's November 22, 1996, blank leave request was never approved. On November 26, 1996, Petitioner also acknowledged receipt of a "Notice of Proposed Disciplinary Action," by which Lt. Little and Mr. Tarbox recommended that Petitioner be suspended without pay.5 Petitioner was again offered an opportunity to contest this proposed disciplinary action at a hearing on December 3, 1996. (P-18) The record is silent as to whether a disciplinary hearing was actually held on December 3, 1996. Petitioner submitted a leave form on December 6, 1996, for 2.5 hours "vacation" leave without pay on December 3, 1996, for a "Conference with doctor to try an [sic] stop continued disciplinary action because of illness doctor approved." (P-23) On December 3, 1996, Petitioner had telephoned Lt. Little to ask if his message had been received. He then reported to work at 10:00 a.m. Respondent's business records (P-22) show the following: Petitioner worked December 4-5, some of December 6, and all of December 7, 1996. He was not required to be at work on December 8-9. He called in sick on December 10-11. On December 12, he reported for work and attended five hours of drug policy training. Then he left for medical reasons and later called in to say he was too sick to return to work. On Friday, December 13, Petitioner called in sick, saying he was going to the doctor for a cut foot. He later called in again and was told that he needed to do his timesheet and it was agreed he would do it and have it in the following Monday. Petitioner was absent on Saturday, December 14. He was not required to be at work on December 15-16, 1996. On Monday, December 17, Petitioner did not phone or appear for work. On December 18, Petitioner phoned in, saying he had to wear bedroom slippers and had domestic problems. On December 19, Petitioner called in late and left a voice message on the Jail phone. On Friday, December 20, Petitioner called in on time but said he would not be in until Tuesday of the following week. He gave no reason. He was not required to be at work on December 22-23. On December 24, 1996, Petitioner did not come to work or call in. On Christmas Day, Petitioner called in before shift and stated he would not be in that day or the following day, December 26, 1996, until 10:00 a.m. On December 26, December 27, and December 28, Petitioner did not report for work or call in. Petitioner was not required to work December 29 or 30, 1996. On December 31, Petitioner called and said that he would not be in that day but would call back to talk to the shift lieutenant. He did not do so. Also, Petitioner did not report for work or call in for January 1 through 4, 1997. Most of this business record was substantiated by the direct testimony of Sgt. Babula and Lt. Little who observed the events and wrote most of the business record. The matters that were not confirmed in their direct testimony were supported by the type of hearsay that explains or supplements direct evidence and is admissible in this type of proceeding. Petitioner acknowledged that the business record was essentially correct as to days he was absent in December 1996, and January 1997. Petitioner's testimony only varies the foregoing business record to the effect that on December 10, 1996, not December 13, 1996, Petitioner called and spoke with Sgt. Withey, stating that he would not "be back [to work] until [he had] seen and heard from [his] doctors," and related to Withey that he had some problem with his foot. Petitioner assumed that his superiors would get this message and would understand that he meant he was exercising the blank November 22, 1996, leave request. (See Findings of Fact 60-66). His superiors did not infer from this message what Petitioner had hoped they would. A reasonable person would not infer all that from the information Petitioner says he provided Sgt. Withey. It is uncontested that Petitioner did have an injury to his foot at this time and that such injuries can be particularly hazardous to persons who, like Petitioner, suffer from diabetes. From December 4, 1996, onward, Petitioner did not speak directly with his lieutenant, although he had been repeatedly instructed to do so in order to request advance leave. Petitioner did not return to work after December 7, 1996. Despite the personnel rules, custom at the Jail, and prior direct orders by warning and disciplinary action letters, Petitioner submitted no leave slips directly to his superiors after December 6, 1996. Instead, he submitted them to his union shop steward and to a County Commissioner, although he had no reason to believe the Commissioner had any authority over Jail personnel matters. Respondent never authorized leave for Petitioner after December 13, 1996. Petitioner's extended absence without authorization was in violation of Respondent employer's long-standing "three day abandonment rule." There had been no word from Petitioner since December 31, 1996, so between January 17 and January 24, 1997, a "Notice of Disciplinary Action" was issued against Petitioner for [V]iolation of Alachua County Personnel Rules and Regulations, Chapter XIX, Section 3, c., Group III, Offense No. 8 'Absence of three (3) consecutive work days without proper authorization at which time the employee is considered to have abandoned the position and resigned from the County's employ.' The proposed discipline was termination, and again, Petitioner was offered the opportunity to contest the proposed final agency action at a hearing to be convened on February 18, 1997. (P-25) Sometime in January 1997, Petitioner saw a Master of Social Work, because Dr. Greene was on educational leave. Petitioner was so upset that the social worker advised him to focus on his medical problems. Apparently, Petitioner leapt to the conclusion that meant his doctors would handle all his leave-related problems. Sometime in January 1997, Petitioner had successful surgery on the growth between his legs. On January 27, 1997, Dr. Greene saw Petitioner in therapy and notified Mr. Tarbox in writing that, Mr. Lawrence James was seen for an appointment today in my office. He is apparently unable to continue working in what is perceived to be a hostile work environment at the jail. Compounded by his medical problems and what seems to be a lack of responsivity and accommodation by the administration, Mr. James' level of emotional distress has considerably increased since our last communication. It is strongly recommended that he take a leave of absence from the workplace until his condition is improved. He is scheduled to return next week for continued intervention. Thank you for your time and attention. (Emphasis supplied) (P-26) Dr. Greene testified that it was Petitioner's combined mental and physical circumstances which caused him to recommend the leave of absence. The January 24, 1997, Notice of Proposed Disciplinary Action was mailed to the last address Petitioner had given Respondent. On January 30, 1997, Petitioner's mother signed the certified mail receipt for the January 24, 1997, Notice of Proposed Disciplinary Action. Sometime thereafter, she delivered the Notice to Petitioner, who no longer lived with her. He refused to deal with it. Dr. Brient removed a suture from Petitioner's leg on February 4, 1997. This seems to have related to Petitioner's post-surgery release after removal of the growth between his legs. Petitioner did not then return to work. Because Respondent's principals had not recognized Petitioner's mother's name on the certified mail receipt, they caused the January 24, 1997, Notice of Proposed Disciplinary Action to be served on Petitioner by a Deputy Sheriff. Petitioner received this personal service on February 5, 1997, and told the Deputy that he would not deal with the Notice of Disciplinary Action, but his doctors would. Having been released as a result of his operation, there was no physical reason Petitioner could not have appeared for the February 18, 1997, hearing to present any opposition to his proposed termination based on "the three day abandonment rule." He did not appear. On February 21, 1997, Petitioner was mailed a "Notice of Dismissal," effective that date and signed by Harry Sands, a new Interim Director, for abandoning his position, in violation of the personnel regulations. The Notice of Dismissal gave Petitioner the option of appealing his termination through the employee appeal system or the collective bargaining grievance procedure. Petitioner did not take either appeal route. However, Petitioner did suggest to another Jail officer that those who had done this to him might need to get a pine box, i.e. coffin. The threat was not deemed worthy of prosecution by the State Attorney's Office. Petitioner testified, without corroboration, that he never received the promised re-orientation or re-training associated with re-instatement to his job. No witness gave any clear indication of what the re- orientation and re-training, as contemplated by the re- instatement agreement (see Finding of Fact 7) or as contemplated by Mr. Tarbox's July 17, 1996, letter (see Finding of Fact 29), was supposed to include. Lt. Stover did not remember any specific training he gave Petitioner, nor did Lt. Little, but Lt. Little testified that he was present when, before Petitioner first arrived on Lt. Stover's shift in July 1996, the Captain had ordered them both to "bring [Petitioner] up to speed." Petitioner suggested that failure to re-orient and retrain him evidenced Respondent's discrimination against him. His post-hearing proposal also asserts that due to Respondent's failure to train him in "new" personnel regulations, combined with Respondent's requirement that he adhere to those regulations which Jail custom did not normally follow, constituted disparate treatment and/or discrimination against him on the basis of his race or due to retaliation, and/or failure to accommodate his handicap. This perception is unpersuasive in light of the employer's repeated correspondence urging him to take the training, whatever that training might have been. Despite Mr. Tarbox's failure to reply to Petitioner's October 22, 1996, inquiry about training (See Finding of Fact 48), Petitioner's perception of discrimination was not established as fact. From the evidence as a whole, it is more probable that any failure to train Petitioner was the result of his request to change shifts, and thus, lieutenant-supervisors in July or his frequent absences. The record does not make clear whether the re-orientation/re-training requirement was unique to Respondent, who returned in 1996, or applied to all four of the returning African-American officers restored in 1994, but Petitioner did not demonstrate that any White/Caucasian or non-handicapped employee ever got any more re-orientation/re-training than he did. He did not establish that any White/Caucasian or non-handicapped employee ever got any more re-orientation/re-training than the other restored African-American officers, handicapped or otherwise. He also did not establish that any other restored African-American officer, handicapped or otherwise, received more re- orientation/re-training than he did. Moreover, contrary to Petitioner's testimony, Sergeant Babula testified credibly that he had at least instructed Petitioner with regard to the new payroll forms when Petitioner changed shifts in July 1996. Payroll forms include calculating hours worked and monies owed. Testimony and business records also show Petitioner had five hours of drug policy training. (See Finding of fact 72). Also, Respondent did not discipline Petitioner for his failure to request leave of specific personnel as required by the only new personnel regulation, until after Petitioner had been instructed in writing to do so. These written instructions may not have constituted complete "re-orientation" or "re- training," but they were direct orders sufficient to instruct Petitioner what was expected of him. (See Findings of Fact 16, 29, 43, 46-47, 57-59). Lastly, based on Petitioner's testimony that even if he had known he was required by a new regulation to request leave from his lieutenant-supervisor he would not have followed that regulation but instead would have considered himself bound by his union contract and by the custom of asking for leave of anyone on his shift at the Jail, it appears that any failure of Respondent to specifically "train" Petitioner concerning new personnel regulations had no effect on his subsequent failure to comply with the employer's expectations concerning its leave policy. Petitioner had admitted in evidence a certified copy of a "Second Superceding Indictment" issued by a federal Grand Jury on February 27, 2001. It was not established that this was the same Grand Jury before which Petitioner testified in 1996. (See Finding of Fact 47). The indictment (which is only a charging document, not a conviction) named Nate Caldwell, Respondent's former Director; Samuel Krider, Respondent's former Assistant Director; Garry M. Brown, a former Captain with Respondent; and Charles Scott Simmons, a former Lieutenant with Respondent, for conspiracy to obstruct justice by violating 18 USC Section 1503, by hindering the court and jury in a federal civil rights action brought by Mr. Dickerson against the Alachua County Board of County Commissioners. Mr. Dickerson's federal case arose out of Mr. Dickerson's demotion in rank with Petitioner in connection with the 1994 escape. It was not established that any of the indicted officials held office during the time material to Petitioner's instant case, 1996- 1997, or that any of them had anything to do with Petitioner's 1996 leave disputes or 1997 termination. Indeed, it was established that Sands or Tarbox was Interim Director at all times material. The indictment mentions Petitioner and Captain King, a superior of Petitioner at all times material, but neither Petitioner nor Captain King were indicted. Despite the lack of clarity of Petitioner's and Mr. Dickerson's testimony, the undersigned infers from their testimony and the indictment that Petitioner testified concerning the same matters before the Grand Jury in 1996 and that prior to 1996 Petitioner had been a witness in Mr. Dickerson's federal discrimination case against the County Commissioners. However, Petitioner testified that his retaliation allegation herein is not based on his 1996 testimony before the Grand Jury. Rather, Petitioner asserted at hearing that he believed he had been retaliated against by his superiors in 1996-1997 for speaking at 1993 meetings of the County Commission concerning structural and staffing problems at the Jail, and otherwise he did not know why he had been retaliated against. (TR-Vol. I pp. 229-233).
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that Petitioner has not proven discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 18th day of September, 2001.
The Issue Whether the Petitioner should be treated as having abandoned his employment with the Respondent?
Findings Of Fact The Petitioner was a Career Service employee with the Respondent. The Petitioner received a copy of an Employee Handbook upon his employment with the Respondent. The Handbook informed the Petitioner of the rules governing absences from work, including the rule providing that an employee will be treated as having abandoned his position if absent for 3 days without authorized leave. The Petitioner was employed as an Investigator in the Child Support Enforcement Office of the Respondent in Inverness, Florida. The Petitioner's immediate supervisor was Shirley Barker. In June, 1986, the Petitioner suffered a seizure. The Petitioner subsequently underwent surgery for the removal of a brain tumor in June, 1986. The Petitioner returned to work following his surgery on approximately September 15, 1986. Ms. Barker determined that the Petitioner's performance was not up to standard and discussed the need for additional leave with the Petitioner. The Petitioner's physician agreed that it would be beneficial for the Petitioner to have additional time to recover from his surgery and recommended an additional six months leave of absence. The Petitioner signed a Report of Personnel Action indicating that he was going to take leave without pay. The Petitioner's leave was effective October 13, 1986, "for a period of 6 months with return pending medical reevaluation." This leave of absence ended on April 13, 1987. During the Petitioner's 6 months leave of absence he was given a monthly medical evaluation by his physician. In December, 1986, the Petitioner met with Ms. Barker and told her that he planned on returning to his position with the Respondent when his physician approved his return. The Petitioner did not, however, tell Ms. Barker when he would return or request an extension of his 6 months leave of absence. In March, 1987, the Petitioner met with Barbara Jordan, a supervisor in the Child Support Enforcement Office of the Respondent. This was the Petitioner's only meeting during 1987 with any employee of the Respondent. During this meeting the Petitioner did not indicate when he would return to work or request an extension of his 6 months leave of absence. By letter dated April 16, 1987, Herbert R. Hildreth, Sr., Human Services Program Manager, and Ms. Barker's supervisor, informed the Petitioner that his 6 months leave of absence had expired. The Petitioner was also informed that he should advise the Respondent by April 26, 1987, of his intentions concerning his employment with the Respondent. Mr. Hildreth's letter of April 16, 1987, was received by the Respondent on April 21, 1987. The Petitioner did not respond to Mr. Hildreth's letter of April 16, 1987, prior to April 26, 1987. By letter dated April 30, 1987, Judith Mesot, Deputy District Administrator of the Respondent, informed the Petitioner that the Respondent considered the Petitioner to have abandoned his Career Service position with the Respondent because the Petitioner had been on unauthorized leave since April 10, 1987. By letter dated May 27, 1987, the Petitioner informed the Respondent that his physician had informed him during a May 20, 1987, appointment that he could return to work on a part-time basis. At no time between October 13, 1986, and April 13, 1987, did the Petitioner inform the Respondent when he intended to return to work or request an extension of his 6 months leave of absence. The first time that the Petitioner informed the Respondent that he was ready to return to work was in his May 27, 1987, letter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, John Blackford, has abandoned his position with the Respondent, the Department of Health and Rehabilitative Services. DONE AND ORDERED this 15th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2617 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 and 4 To the extent that these proposed facts were proved by the evidence, see finding of fact number 3. 5 and 6 4. 7 5. 8 Hereby accepted. 9 and 10 6. 11 7. 12 Although the Petitioner testified that he met with Ms. Barker within one day after his monthly examina- tions, the weight of the evidence failed to support this testimony. See 8. Even if the Petitioner had met with Ms. Barker as often as the Petitioner indicated, the Petitioner still did not return to work or obtain approval of his absence after April 13, 1987. 13 and 14 To the extent that these proposed facts were proved by the evidence and are relevant, see finding of fact number 9. Most of these proposed findings of fact are not relevant, however. 15 10 and 12. 16 13. Respondent's Proposed Findings of Fact 1 1. 2 6. 3 10 and 11. 4 Hereby accepted. 5 11. 6 12. 7 13. COPIES FURNISHED: Don Royston, Esquire Department of Health and Rehabilitative Services District III Building H 1000 Northeast 16th Avenue Gainesville, Florida 32609 John Blackford 3199 East Quail Court Inverness, Florida 32652 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
