The Issue Whether the Respondent's layoff of Petitioner was in compliance with Chapter 11, Florida Statutes and Chapters 22A-10 Florida Administrative Code. Whether the Respondent's layoff of Petitioner should be sustained.
Findings Of Fact Petitioner, Vernon K. Yon, was laid off by Florida State University on June 12, 1975 and has subsequently been unemployed. The layoff of Petitioner came as the direct result of the elimination of Petitioner's position, Stores Manager, Legislative Position Number 20156, from the working capital account of Respondent. The deletion of Petitioner's position and the layoff of Petitioner was approved by the Respondent's personnel director, the Chancellor of the State University System and the State Personnel Director. Petitioner was the only employee within the classification of Stores Manager in the Respondent Agency. The Agency reported to the State Personnel Director the name of Petitioner and Petitioner was placed on the appropriate State Layoff Register. The Agency's funded vacant positions do not include the position of Stores Manager and the Agency has taken no action to recreate such a position or to interview or employ any individual in the position since its elimination on June 12, 1975. The State Personnel Information Vacant Position Report dated January 5, 1976 showed Position Classification 0625, Stores Manager, Pay Grade 22, at Florida State University vacant. The Position Classification of Stores Manager was removed from the working capital account of the Agency but was retained in the University Auxiliary Reserve Account in the University Budget Office. Thus, the Position is subject to being re-established, and should such position be re- established, Petitioner Yon would have had first right of recall to that position if such position had been established within twelve (12) months from the date of layoff. Two positions were abolished at the time that Petitioner's position was abolished - the position of Stores Manager and the Storekeeper position. There were twenty-two (22) layoffs at the time of the reorganization, some of whom went to other positions with Respondent Agency but all left the Maintenance Section in which Petitioner was employed. Petitioner contends: That his position has not been abolished as required by Chapter 110, Florida Statutes; that the Respondent Agency continues to hold the Position in its Auxiliary Reserve Account; that the Department of Administration Division of Personnel Procedures of Florida Statutes 110, do not support the procedure of holding abolished positions in a Reserve Position status. The position is shown on the personnel records to be vacant. That the evidence does not show that there was a shortage of funds or a material change in the organization of the agency. That the Petitioner was not granted fully re-employment rights as to demotion or reassignment in lieu of layoff. Respondent Agency contends: That the listing of Petitioner's position as "vacant" is through an error not of the Respondent Agency's making, but is a list kept by the State Personnel Director in the Department of Administration. That Respondent's prior position "Stores Manager" is not a funded position and the retention of such a position as an Auxiliary Position is a mere method or device so that a position of similar or different classification could be established in the future when working capital funds might become available to the Agency. That the Respondent Agency has deleted its sole position of Stores Manager, the position occupied by the Petitioner; that there is no intent to re-establish the position; that no funds are available for re-establishing the position and that Petitioner's layoff came as direct result of the elimination of Petitioner's position through a reorganization caused by a shortage of University funds; that a reallocation of the workload and a reassignment of the responsibilities to a different unit is a more efficient use of University funds. That the action of Respondent Agency is not an action based upon dismissal for cause. That all the procedural requirements were followed and the layoff is valid. The Hearing Officer further finds: That the layoff of Petitioner was a direct result of a shortage of Agency funds and a reorganization brought about as a result of an attempt to conserve Agency funds. That the layoff of Petitioner is not a disciplinary action. That the Respondent Agency has abolished the position of Stores Manager held by Petitioner. That the Respondent Agency has properly followed the requirements of the Florida Statutes and the rules promulgated thereunder.
Recommendation Dismiss the appeal. DONE AND ENTERED this 15th day of June, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June. COPIES FURNISHED: Mr. Vernon K. Yon 4105 Arklow Drive Tallahassee, Florida 32303 Robert D. Bickel, Esquire Suite 309 Westcott Building Florida State University Tallahassee, Florida 32306 Ronald A. Mowrey, Esquire Post Office Box 3021 Tallahassee, Florida 32303
The Issue The issues are whether Petitioner became an employee of an FRS employer within a calendar month after completing his participation in the Deferred Retirement Option Program (DROP) in violation of Subsection 121.091(13)(c)5.d., Florida Statutes (2006)1; whether Respondent's interpretation of relevant statutes is an unadopted rule; and whether Respondent's interpretation of relevant statutes is an invalid exercise of delegated legislative authority.
Findings Of Fact The parties stipulated to several facts in this proceeding. Respondent is the state agency responsible for administering the FRS. Petitioner was employed as an equipment operator (street sweeper) by the City of Venice, Florida (the City), for more than 35 years until he completed his participation in DROP on January 11, 2007. At that time Petitioner was earning approximately $38,000.00 annually. The City revoked its participation in the FRS effective January 1, 1996, and established a new City retirement plan. The new City retirement plan applies to all employees hired after January 1, 1996. However, the City continued its participation in the FRS for all employees who were members of the FRS prior to January 1, 1996. Petitioner elected to participate in DROP on March 31, 2002. At the conclusion of DROP, Petitioner received a lump-sum payment of approximately $84,279.00 and received monthly benefits until Respondent ceased paying benefits in accordance with the proposed agency action. Petitioner's efforts at reemployment were unsuccessful. On January 31, 2007, the City employed Petitioner to perform the same work he previously performed at a base salary as a "new hire."2 The City assured Petitioner that reemployment would not adversely affect Petitioner's FRS retirement benefits because the City does not consider itself an FRS employer. A member of the City's human resources department contacted a representative for Respondent to verify the City's statutory interpretation. The conversation eventually led to this proceeding. Petitioner was not employed by an employer under the FRS during the next calendar month after completing his participation in DROP on January 11, 2007. Judicial decisions discussed in the Conclusions of Law hold that the issue of whether Petitioner is an employee of an FRS employer is a factual finding. When Petitioner began employment with the City on January 31, 2007, Petitioner was not a member of the FRS within the meaning of Subsection 121.021(12). He was not an employee covered under the FRS because he was hired after January 1, 1996, when the City revoked its participation in FRS. On January 31, 2007, Petitioner was not an employee within the meaning of Subsection 121.021(11). Petitioner was not employed in a covered group within the meaning of Subsection 121.021(34). Petitioner did not become a member under Chapter 121, and the City was not a "city for which coverage under this chapter" was applied for and approved for Petitioner. On January 11, 2007, Petitioner ceased all employment relationships with "employers under this system" within the meaning of Subsection 121.021(39). When Petitioner resumed employment on January 31, 2007, Petitioner did not fail to terminate employment with an employer under the FRS system. Petitioner's new employer was not an employer under the FRS system and had not been such an employer after January 1, 1996. After January 1, 1996, the City was not a covered employer for any employees employed after that date, including Petitioner. On January 31, 2007, Petitioner was not an employee of an employer within the meaning of Subsection 121.021(10). The City did not participate in the FRS system for the benefit of Petitioner. The employment of Petitioner by the City on January 31, 2007, had no financial impact on the FRS, and Petitioner did not begin to accrue new benefits with the FRS. Respondent did not demonstrate in the record why the agency's proposed statutory interpretation requires special agency insight or expertise and did not articulate in the record any underlying technical reasons for deference to agency expertise. Nor did the agency explain in the record or its PRO why the issue of whether Petitioner is an employee of an FRS employer is not an issue of fact that is within the exclusive province of the fact-finder. Respondent proposes a literal interpretation of selected statutory terms without explaining legislative intent for the prohibition against reemployment within the next calendar month.3 Respondent's proposed statutory interpretation also fails to distinguish the economic impact in situations involving what may be fairly characterized as a dual-purpose employer; that is one like the City which is part covered employer and part non-covered employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order reinstating Petitioner's monthly retirement benefits, paying all past due amounts to Petitioner, with interest, and dismissing its request for reimbursement of past FRS benefits from Petitioner. DONE AND ENTERED this 3rd day of June, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 3rd day of June, 2008.
The Issue Whether Michael J. Rodgers abandoned his position and resigned from the career service within the contemplation of Rule 22A-7.010(2), Florida Administrative Code?
Findings Of Fact V. G. "Jerry" Collins, a DOT maintenance engineer for 14 years, was Michael Rodgers' supervisor in June of 1987, when DOT employed the latter as a highway maintenance technician II at its Perry yard. While recovering from a job-related injury, Mr. Rodgers had been assigned to pump gas there. After Mr. Rodgers began work for DOT, he was furnished a copy of DOT's employee handbook. DOT's Exhibit No. 6. On page 12, the handbook states: If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time. This will allow the Department to effectively schedule your work assignments on a daily basis. When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed. If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work. If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time. If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence. Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given. DOT's Exhibit No. 4. On page 43, the handbook discusses the abandonment rule: JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. DOT's Exhibit No. 3. Mr. Rodgers signed a form acknowledging receipt of the handbook on December 16, 1983. DOT's Exhibit No. 5. At about four on the afternoon of Monday, June 22, 1987, Mr. Collins asked Mr. Rodgers when his next doctor's appointment was. Mr. Rodgers replied, "I need to see him tomorrow." (T. 35) He did not "state that it would be for illness" (T. 53) or specify the reason for the visit. (T. 74) Believing Mr. Rodgers had an appointment to see his doctor the following day, Mr. Collins said, "That's fine, when you come back to work bring a doctor's certificate." (T. 17) But the leave Mr. Collins authorized Mr. Rodgers to take was "not a leave of absence for illness." (T. 53) On Tuesday, June 23, 1987, A DOT employee marked Mr. Rodgers absent for the day on "authorized leave" (T. 18) without pay. Mr. Rodgers, who lives about 60 miles from Perry, travelled to Dr. Hauser's office in Old Town on Tuesday morning "to sit down and talk with him about some information [he] needed," (T. 36-37) concerning an automobile accident's forensic sequelae. He was told to return later that day, because the doctor could not see him immediately. Although he returned at noon, and on four different occasions that afternoon, the doctor gave other patients priority. Mr. Rodgers then telephoned DOT's Perry yard, and "gave the secretary . . . the message that [he] was unable to see the doctor and . . . would still need to be off . . . to attempt to see him again on Wednesday the 24th." (T. 24, 38) When Mr. Collins learned of Mr. Rodgers' conversation with the secretary, he asked William S. Clark to telephone Dr. Hauser's office, at the Tri-County Medical Center. Betty in Dr. Hauser's office told Mr. Clark that, although Mr. Rodgers had in fact visited the office, he had no appointment. On Wednesday morning, DOT's attendance records were marked to reflect that Mr. Rodgers was absent on authorized leave without pay, although Mr. Collins testified that leave never was authorized for that day. (T. 19, 80) Later Wednesday, Mr. Collins, under the impression that Mr. Rodgers "had lied about going to the doctor for a doctor's appointment," (T. 82) ordered that the attendance records for Tuesday and Wednesday be altered to show that Mr. Rodgers' leave was not authorized on those days. (T. 19, 80, 82) On the afternoon of Wednesday the 24th, Mr. Rodgers, who had inquired at the office about Dr. Hauser's availability on two occasions earlier in the day, saw Dr. Hauser, discussed effects of the automobile accident, and made an appointment for the following day to have his back examined. (T. 38) On Thursday, the 25th, he kept the appointment, and obtained a slip of paper attesting the fact. But, in Mr. Collins' view, Mr. Rodgers' employment had ended before he saw the doctor that day: "He was considered to have abandoned his position by 9:00 a.m. Thursday morning since he had not called in [after Tuesday afternoon.]" (T. 79) When Mr. Rodgers returned to work on Friday, June 26, 1987, Mr. Collins read, then returned, the note from the doctor, informed Mr. Rodgers of the changes in the attendance records, and advised him that his employment had terminated.
Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate Michael J. Rodgers as a highway maintenance technician II at its Perry yard, with back pay since June 26, 1987. DONE and ENTERED this 27th day of May, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 27th day of May, 1988. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Aaron A. Green, Esquire P. O. Box 1265 Gainesville, Florida 32602 Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner was formerly employed as an Unemployment Compensation (UC) Adjudicator in Respondent's Miami UC office. In this capacity, he interviewed claimants seeking unemployment compensation and made initial determinations regarding the validity of their claims. Petitioner was often absent because of illness. When he was at work, however, he performed his duties competently. Petitioner and his fellow employees at the Miami UC Office were required to notify supervisory personnel no later than the beginning of the workday if they were going to be absent that day. Petitioner was made aware of this requirement on various occasions prior to the absences that led to the termination of his employment with Respondent. On Tuesday, September 5, 1989, Petitioner telephoned his supervisor and told her that he would be absent that day because of an ankle injury he had sustained. He did not indicate during the conversation whether he would be at work the following day. On Wednesday, September 6, 1989, and Thursday, September 7, 1989, Petitioner neither reported to work nor contacted his supervisor at any time during the day to give notification of his absence. On Friday, September 8, 1989, Petitioner again failed to report to work. He did, however, telephone his supervisor concerning his absence, but he did not do so until 4:50 p.m., 20 minutes after the shift to which he was assigned had ended. By letter dated September 11, 1989, Respondent notified Petitioner that it had determined that Petitioner had abandoned his position and resigned from the Career Service effective the close of business September 8, 1989, in view of his unauthorized absence from work on September 6, 7, and 8, 1989. It is this determination that is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1990. STUART H. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact To the extent that Petitioner asserts in his letter that he contacted his supervisor on September 5, 1989, and again on September 8, 1989, his proposed findings of fact have been accepted and incorporated in substance in this Recommended Order. To the extent that he claims that he "did not have 3 consecutive days of unauthorized absences," his proposed factual findings have been rejected because they are contrary to the preponderance of the evidence. Respondent's Proposed Findings of Fact First Sentence: Accepted and incorporated in substance; Second Sentence: Rejected because it adds only unnecessary detail. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. First, second and fifth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. COPIES FURNISHED: Jerry Cooper 1601 Northwest 17th Street, #2 Miami, Florida 33125 Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 William A. Frieder Senior Attorney Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, 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 Hugo Menendez, Secretary Florida, Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue The issue is whether Respondent committed a unlawful employment practice by discriminating against Petitioner based on an alleged disability in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent initially hired Petitioner as a legal secretary in 1997. At that time, Petitioner worked in Respondent's office in Chipley, Florida. Petitioner suffered no continuing medical problems in 1997. In a memorandum dated April 17, 2001, Respondent's staff advised Petitioner that employees using more leave than they had earned would have to be place on "leave without pay" for the time used in excess of time earned. In a letter dated May 14, 2001, Petitioner advised Respondent that she intended to resign her position as a legal secretary effective May 25, 2001. Petitioner wrote the letter because she was moving to Apalachicola, Florida. Instead of accepting Petitioner's resignation, Respondent offered and Petitioner accepted a transfer as a legal secretary in Respondent's office in Port St. Joe, Florida. Petitioner was able to continue working for Respondent without a break in service. In the summer of 2002, Petitioner began to suffer from an unexplained shortness of breath. Neither Petitioner nor Respondent knew the cause for the symptoms Petitioner was experiencing. By letter dated October 9, 2002, Respondent once again advised Petitioner that she could not use more leave time than the amount she earned. On at least one occasion, Petitioner's excessive time-off caused a reduction in her salary for "leave without pay." In a memorandum dated October 11, 2002, Respondent's staff documented concerns about Petitioner's attendance and performance. One of the concerns was Petitioner's chronic failure to file reports in a timely manner. Petitioner was late in filing the reports even though Respondent allowed her to prepare them at home and send them to Respondent by facsimile transmission from her husband's place of business. In February 2003, Petitioner still did not have a medical diagnosis to explain why she was sick and unable to work. On or about February 13, 2003, Petitioner and her supervisor agreed that Petitioner would take leave without pay pending an excuse from a doctor that she was unable to work. Petitioner's testimony that Respondent offered to let Petitioner have an indefinite leave of absence is not persuasive. On March 12, 2003, Petitioner provided Respondent medical documentation, excusing her from work due to unspecified illness through March 17, 2003. On or about March 14, 2003, Petitioner was admitted to the hospital. Subsequent medical tests revealed blood clots in Petitioner's lungs. Petitioner was eventually released from the hospital with prescriptions for blood thinning medication and oxygen. On or about March 20, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor's note, dated March 18, 2003, excused Petitioner from work for two weeks. On or about April 2, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor stated that Petitioner had been hospitalized with a serious condition called pulmonary embolus and that she continued to have significant symptoms of shortness of breath and fatigue. The doctor's note stated that Petitioner would not be able to work for six weeks. On May 5, 2003, Jackie Pooser, Respondent's Administrative Director, talked to Petitioner by telephone. Ms. Pooser advised Petitioner that she needed to provide another doctor's excuse by May 8, 2003, if she was still under a doctor's care and unable to return to work. Otherwise, Respondent expected Petitioner to resume her duties in Respondent's office in Port St. Joe, Florida. Petitioner was Respondent's only secretary in Port St. Joe, Florida. That office was in dire need of a performing secretary. However, apart from her illness, Petitioner was not anxious to return to work in the Port St. Joe office because she had a personality conflict with the only full-time attorney who worked there. During the May 5, 2003, telephone conversation, Petitioner did not tell Ms. Pooser that she was disabled or request any on-the-job accommodation. Instead, she led Ms. Pooser to believe that she intended to return to her job when authorized to do so by her doctor, hopefully in June 2003. During the hearing, Petitioner admitted that she never requested that Respondent provide her with any type of accommodation. In a letter dated May 6, 2003, Ms. Pooser confirmed the May 5, 2003, phone conversation. In the letter, Ms. Pooser further reminded Petitioner that her medical excuse expired on May 8, 2003. The letter referred to the Public Defender Classification & Pay Plan requirements for a doctor's excuse without which an employee is considered to have abandoned his or her employment position. Petitioner's medical excuse expired on May 8, 2003. Petitioner did not return to work or provide Respondent with further medical documentation. On May 16, 2003, Respondent verbally terminated Petitioner by telephone. A follow-up letter dated May 19, 2003, stated that Petitioner's work performance had not been satisfactory for some period of time. The letter also stated that Petitioner had abandoned her position by failing to provide Respondent with a doctor's excuse. Petitioner's testimony that she requested her physician to send the medical excuse directly to Respondent by facsimile transmission is not persuasive. Petitioner did not call Respondent to inquire whether Respondent received the excuse or to offer any other explanation for failing to send medical documentation to Respondent. Petitioner's doctor subsequently released her to return to work. Petitioner received unemployment compensation for at least one month. In August 2003, Petitioner began working for a real estate company, checking guests into resort rentals. She resigned that job after working for one month. Petitioner admitted during the hearing that she was not disabled when she worked for Respondent. According to Petitioner, she was diagnosed as being disabled in October 2003, after experiencing further medical problems. However, Petitioner has provided no competent (non-hearsay) evidence of that diagnosis. Respondent's attendance and leave policy states as follows in relevant part: STATEMENTS OF POLICY * * * The granting of any leave of absence with or without pay shall be in writing and shall be approved by the proper authority within the Public Defender Office. An employee who is granted leave of absence with or without pay shall be an employee of the Public Defender while on such leave and shall be returned to the same position or a different position in the same class and same work location upon termination of the approved leave of absence, unless the Public Defender and the employee agree in writing to other conditions and terms under which such leave is to be granted. Any leave of absence with or without pay shall be approved prior to the leave being taken except in the case of an emergency where the employee must be absent prior to receiving approval from the proper authority for the absence. * * * (b) If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the Public Defender may place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays may consider the employee to have abandoned the position and resigned from the Public Defender's Office. * * * 3.14 FAMILY AND MEDICAL LEAVE In accordance with the federal Family and Medical Leave Act (FMLA) regulated by the U.S. Department of Labor, eligible employees can receive up to 12 weeks of unpaid leave during any 12-month period for the following reasons: . . . taking care of one's own serious health condition. Employees are not required to take all 12 weeks at once. The employee may request a few days or weeks off at a time (referred to as intermittent leave) or continue to work on a part-time basis (reduced leave). Unless written medical justification deems it necessary, the Public Defender is not required to grant intermittent or reduced leave. * * * (4) Employees must provide reasonable notice (30 days if possible) and make an effort to schedule their leave so as not to unduly disrupt agency operations. The Public Defender may request progress reports from the employees regarding leave status. * * * (7) The Public Defender may require certification from a healthcare provider regarding the need for medical leave, as well as certification of an employee's fitness to return to work. From August 1, 2002, through May 16, 2003, Respondent approved 518 hours or 12 weeks and 38 hours of leave without pay. During the hearing, Petitioner acknowledged that she received the leave without pay. Her testimony that she was not familiar with the above-referenced policies is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Florida, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Herman D. Laramore, Esquire Public Defender, Fourteenth Circuit Jackson County Courthouse Post Office Box 636 Marianna, Florida 32447 Christian C. Griggs 130 25th Avenue Apalachicola, Florida 32320
The Issue The issue for determination is whether Respondent should be suspended and dismissed from employment, as a Microsystems Technician, with Petitioner.
Findings Of Fact No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. In November 2001, Mr. Li was employed with the School Board as a Microsystems Technician. No dispute exists that, as a Microsystems Technician, Mr. Li is an educational support employee, and his employment is governed by the collective bargaining agreement between the School Board and AFSCME, hereinafter the AFSCME Contract. In April 2004, Mr. Li was assigned to two worksites, Cypress Creek Elementary School, hereinafter Cypress Creek, and Blue Lakes Elementary School, hereinafter Blue Lakes. At both schools, his responsibilities included installing computers, running the network, maintaining the software for the computers, and training students and teachers on how to use the software. At Cypress Creek, Mr. Li was assigned to work ten (10) days per month. He experienced problems with his attendance immediately at Cypress Creek, resulting in the principal, Faye Haynes, issuing an “Absence From Worksite Directive,” hereinafter AWS Directive, on May 27, 2004, to Mr. Li. The AWS Directive included, among other things, in detail his leave without pay, authorized (LWOA), and leave without pay, unauthorized (LWOU). Further, the AWS Directive advised Mr. Li, among other things, that his absence from his duties adversely impacted the educational and work environment; and directed him, among other things, to be in regular attendance at the school and on time, to report his intent to be absent directly to the principal or assistant principal, and to provide to the principal or assistant principal written documentation, by way of a written medical note from the treating physician, of absences for illness. Additionally, Mr. Li was advised that future absences would be considered LWOU unless and until the documentation was provided. Mr. Li signed the AWS Directive. However, his attendance failed to improve. A second AWS Directive was issued by Principal Haynes to Mr. Li on September 7, 2004, as a result of his being absent on September 2, 2004. Mr. Li signed the second AWS Directive on the same date. The second AWS Directive included the same matters of which he was previously advised and the same directives. Moreover, Mr. Li was advised that his non- compliance with the directives would be considered a violation of professional responsibilities or insubordination. Mr. Li’s absences failed to improve, and his absences adversely affected the worksite at Cypress Creek. Both teachers and students were suffering from the lack of timely computer- associated activities that were dependent upon Mr. Li timely performing his responsibilities. Mr. Li’s attendance was complicated even more on October 26, 2006. He was arrested for burglary, involving a vehicle, and battery. At the time of his arrest, Principal Haynes was not aware that the reason for Mr. Li’s immediate absence was that he was in jail; she was only aware that he had not reported to work at Cypress Creek. Mr. Li testified at hearing that, while he was in jail, he was given one (1) telephone call and that he called his wife. He explained to his wife what had happened and requested her to call Cypress Creek. Further, Mr. Li testified that his wife called Cypress Creek and indicated that he had been arrested. No testimony was presented contradicting the testimony that Mr. Li’s wife had contacted Cypress Creek. His testimony is found to be credible. On November 1, 2006, Principal Haynes issued and mailed to Mr. Li an Employment Intention Memorandum, hereinafter EI Memorandum. The EI Memorandum indicated, among other things, the dates of Mr. Li’s absences; that the absences were unauthorized and warranted dismissal on the grounds of job abandonment; that several options were available (indicating the options); and that an immediate response was requested to any of the options. Principal Haynes was concerned that Mr. Li was in danger of losing his job due to the number of unauthorized absences and, as a result, she included, as one of the options, a form requesting a leave of absence without pay. Mr. Li testified that he did not doubt that Principal Haynes was attempting to help him. On November 3, 2006, after serving ten (10) days, Mr. Li was released from jail. He had missed seven (7) consecutive workdays. Mr. Li reported to work at Blue Lakes, where he was also the Microsystems Technician. However, he was informed by the principal at Blue Lakes that he was required to report to Regional Center V, as an alternate location, a consequence of his arrest. Being at Regional Center V, Mr. Li was not able to perform any duties and responsibilities at either Cypress Creek or Blue Lakes. Regarding the EI Memorandum, Mr. Li testified at hearing that he received the EI Memorandum after he was released from jail, but did not complete the form requesting a leave of absence without pay because he was unsure as to whether he should complete and return it. He was not sure as to whether completing the form would benefit or harm him, so he did not complete it. His testimony is found to be credible. The evidence is clear and convincing that Mr. Li intentionally did not complete the form requesting a leave of absence without pay. Not having the services of Mr. Li adversely impacted Cypress Creek. Principal Haynes needed the computer services for her school, and, to provide the needed services, she was forced to hire another school employee, a Microsystems Technician, on an hourly basis to work in the evenings to perform Mr. Li’s responsibilities. In order to pay for the needed services being provided by another Microsystems Technician, Principal Haynes had to redirect funds from other programs. As a condition of his alternate placement, on November 3, 2006, Mr. Li executed a Terms and Conditions of Administrative Placement at Alternate Location, hereinafter Terms and Conditions, form. Included in the Terms and Conditions was a requirement that he report to his work assignment during his regular duty hours, which were 8:00 a.m. to 4:00 p.m. Monday through Friday; that he report his attendance by signing-in as directed; that, if he was to take leave due to illness or personal reasons, he must notify the person to whom he reports his attendance in the mornings, who was the administrative director, Melanie Fox, Ph.D., or, according to Dr. Fox, to an administrative secretary; and that he must complete and return work assignments in a timely manner. Mr. Li had attendance problems immediately at Regional Center V, and Dr. Fox advised and reminded him that he was able to apply for leave for a medical condition, if he had such a situation. Due to Mr. Li’s absences, while he was assigned to the Regional Center, on January 19, 2007, Dr. Fox issued him a second EI Memorandum, which was his second EI Memorandum in less than three months. The EI Memorandum indicated that Mr. Li was absent from his worksite 34 times, beginning with September 15, 2006, and ending with January 18, 2007. Furthermore, Dr. Fox indicated, among other things, in the EI Memorandum that the absences were unauthorized and warranted dismissal on grounds of abandonment; that he had four options to which she requested his immediate reply, including notifying her of his need for leave and his intended date of return, requesting leave or resigning, using the forms provided; that he had three days in which to reply; that his absences were considered unauthorized until he communicated directly with her; and that his failure to respond would result in termination due to abandonment. Included with the EI Memorandum, per the School Board’s policy, was a Request for Leave for Absence Without Pay form and a Letter of Resignation form, as options for Mr. Li. He did not complete either form. To determine whether Mr. Li’s absences were authorized or unauthorized, Dr. Fox was guided by the terms of the AFSCME Contract. No dispute exists that the AFSCME Contract was applicable and controlling. Dr. Fox determined that, according to the AFSCME Contract, after the covered employee’s sick leave is expended, any subsequent absence becomes unauthorized unless the employee provides a note from an attending physician. As a result, Mr. Li had expended his sick leave and, therefore, his absences were leave without pay, unauthorized, but, when he provided notes from an attending physician, the absences were changed in the payroll reporting system to leave without pay, authorized. Mr. Li returned to work. However, his absences did not cease. As to Mr. Li’s arrest for burglary, involving a vehicle, and battery, on March 6, 2007, he pled nolo contendere to battery; adjudication was withheld; and his sentence included one-year probation, performing community service, and participating in an anger management program. Mr. Li testified at hearing that no burglary was involved, only a fight. His testimony is found to be credible. On May 16, 2007, a conference-for-the-record, hereinafter CFR, was held to address Mr. Li’s attendance problems; violation of School Board Rule 6Gx13-4E1.01, Absences and Leaves; abandonment of position; insubordination; a review of his record; and his future employment status with the School Board. He did not attend the CFR due to being ill, i.e., passing kidney stones and experiencing great pain. A written Summary of the CFR was prepared, and Mr. Li was provided a copy of it. He does not deny that he received a copy of the Summary of the CFR. Included in the Summary of the CFR were Mr. Li’s absences for the 2005-2006 school year and from July 1, 2006 through May 3, 2007. For the 2005-2006 school year, he was absent six (6) sick days, six (6) personal days, nine (9) days LWOA, and one (1) day LWOU, totaling 22 days, excluding vacation days. From July 1, 2006 through May 3, 2007, he was absent two (2) sick days, three (3) personal days, 68 days LWOU, and 37 days LWOA, totaling 110 days, excluding vacation days. A copy of School Board Rules 6Gx13-4E1.01, Absences and Leaves, and 6Gx13-4A-1.21, Responsibilities and Duties, were attached to the Summary of the CFR. Also, included in the Summary of the CFR were directives to Mr. Li concerning his absences, which was his third time he was being issued directives. The directives included being in regular attendance and on time at the worksite; communicating directly with Dr. Fox when he intended to be absent; documenting absences for illness through a written medical note from his treating physicians presented to Dr. Fox upon his return to the worksite, with a failure to do so resulting in the absences being recorded as LWOU; and adhering to School Board rules, in particular 6Gx13-4E-1.01, Absences and Leaves, and 6Gx13-4A-1.21, Responsibilities and Duties. Furthermore, in the Summary of the CFR, Mr. Li was advised, among other things, that the number of absences were deemed excessive; that his absence from work had adversely impacted the educational program and the effective operation of the work unit; that, if he had attended, he would have been provided an opportunity to respond with reasons for his excessive unauthorized absences and insubordination; that noncompliance with the directives would necessitate a review by the Office of Professional Standards, hereinafter OPS; and that a legal review by the School Board attorneys might result in recommended action or disciplinary measures, including dismissal. Even after receiving the Summary of the CFR, Mr. Li’s problem with absences continued. As of June 13, 2007, he accumulated an additional 29 unauthorized absences. Subsequent to the CFR, Principal Haynes recommended the termination of Mr. Li because she determined that she could not depend upon him and that she needed a dependable Microsystems Technician at Cypress Creek. The Regional Superintendent for Region Center V concurred in her recommendation. OPS concurred in the recommendation because it considered Mr. Li’s conduct to violate the AFSCME Contract and the School Board’s rules regarding Responsibilities and Duties, Code of Ethics, and Absences and Leaves. As to the unauthorized absences, Mr. Li’s deposition was taken by the School Board, and, during the deposition, he presented documents purporting to excuse some of the unauthorized absences. Further, at hearing, he presented additional such documents. Mr. Li testified that his personnel file should have contained all of the documents that he had presented; that he requested his physicians to provide the documents to Cypress Creek; that his physicians informed him that they were not required to indicate the specific nature of the illness for which they were treating him but required only to indicate that they were treating him on the dates indicated; and that his physicians forwarded the documents to Cypress Creek, some by fax. The School Board agreed to accept the documents as demonstrating that the absences indicated on the documents should be excused and changed to authorized absences. Even with the changing of the documented absences from unauthorized to authorized, the School Board asserts that the total number of unauthorized absences is 74. The 74 unauthorized absences include 12 days that Mr. Li was in jail and appeared in court, which were brought to the attention of the School Board by Mr. Li. No dispute exists that Mr. Li had exhausted all of his sick and personal leave. Mr. Li does not contest that the total number of unauthorized absences is 74. The evidence demonstrates that Mr. Li had 74 unauthorized absences. However, at hearing, Mr. Li testified that he wants the reason known as to the medical reason for his absence from the worksite. He testified that the reason for the unauthorized absences, excluding the aforementioned 12 days, was that he was suffering from depression, which caused his immune system to weaken, which lead to other health problems, such as being susceptible to viruses and infections. Also, he testified that he was being seen by a psychiatrist. Furthermore, Mr. Li testified that, prior to his arrest, he was participating in the Employee Assistance Program, hereinafter EAP, due to his depression, and was being seen by a counselor; and that he continued in the EAP until his termination. Additionally, Mr. Li testified that he failed to complete the Request for Leave of Absence Without Pay form provided by Dr. Fox on January 19, 2007, because he was unsure as what might happen if he completed it since Dr. Fox had indicated to him that she did not believe that he was ill. Moreover, Mr. Li testified that he was not attempting to dispute the 74 unauthorized absences and to have the unauthorized absences changed to authorized absences, but that he was attempting to demonstrate that he was not a “bad person,” that he was not faking his illness, that the absences were not on purpose, and that he was not insubordinate. The undersigned finds Mr. Li’s testimony to be credible. The undersigned provided Mr. Li with the opportunity to continue the hearing in order for him to have his psychiatrist and counselor testify in this matter; however, Mr. Li decided not to take advantage of a continuance but to proceed with the hearing without the psychiatrist and counselor as witnesses. Even though the undersigned finds Mr. Li’s testimony regarding his depression credible, in particular, as to the effect of his depression on his physical well-being, and even though depression undoubtedly affects one’s mental well- being, including one’s thinking process, no testimony was presented as to what extent Mr. Li’s depression affected his thinking process. The evidence demonstrates that Mr. Li was physically ill during the absences, except for the 12 absences he was in jail and appeared in court. The evidence demonstrates that Mr. Li was not in regular attendance and on time at his worksite. As to the unauthorized absences, the evidence demonstrates that Mr. Li failed to provide documentation, regarding his illness, through the production of written medical notes from his treating physicians. The evidence demonstrates that Mr. Li failed to communicate his unauthorized absences to Principal Hayes or Dr. Fox and that he intentionally failed to communicate his unauthorized absences to them. The evidence fails to demonstrate that Mr. Li refused to request a leave of absence. The evidence demonstrates that he did not request a leave of absence because he was unsure as to whether such a request would benefit or harm him, especially when Dr. Fox informed him that she did not believe that he was ill, but at the same time, providing him with the request. An inference is drawn and a finding of fact is made that Mr. Li’s failure to request a leave of absence was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending and dismissing Jorge Li from employment with it. DONE AND ENTERED this 15th day of January 2008, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2008. COPIES FURNISHED: Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Jorge Li 11458 Southwest 109th Road, Apt. X Miami, Florida 33176 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Respondent discriminated against the Petitioner contrary to statute on the basis of Petitioner's disability.
Findings Of Fact Petitioner was diagnosed with cancer in December of 2002, and was on sick leave off and on from the time of her diagnosis until the first part of 2004. Later, after surgery, the Petitioner was on extended leave while she recovered from surgery and later from chemotherapy. In June of 2003, Petitioner was rapidly approaching the end of her available leave, but, more significantly, the end of the leave required to be granted under the Family Medical Leave Act (FMLA). This situation resulted in correspondence between Petitioner and the Department about extension of her leave and her return to work. On June 17, 2003, Jeff Carr, Human Resources Manager for the Department, sent a letter to Petitioner in connection with her medical leave status. This letter advised Petitioner that an agreed-upon extension of leave would cover Petitioner until July 4, 2003. As the latest physician's statement submitted by Petitioner indicated that Petitioner was unable to perform the essential functions of her job, the letter from Mr. Carr advised Petitioner of options available to her: 1) a return to work on July 5, 2003, if she was released by her physician as able to perform the essential functions of her job; 2) resignation if she was unable to perform the essential functions of her job; 3) regular or disability retirement. If Petitioner did not choose one of the three options, she was advised she would be terminated. On June 23, 2003, Petitioner wrote to Beth Englander, District Administrator, requesting additional leave in accordance with her doctor's latest evaluation. A copy of a note from Petitioner's oncologist was attached which stated that Petitioner would need to be off at least six to eight weeks. In addition, Petitioner noted that following completion of chemotherapy she would need additional surgery and would need to make additional requests for leave. Petitioner e-mailed Ms. Englander on June 24, 2003, and Ms. Englander replied that same day. The reply again advised Petitioner of her three options to avoid termination for inability to perform her job. After having been twice advised of her options, Petitioner wrote Mr. Carr on June 27, 2003, advising that she would not finish her chemotherapy treatment until approximately September 1, 2003. However, no estimate was given for Petitioner's medical release to return to work following the additional surgery Petitioner said she would need in her letter to Ms. Englander of June 23, 2003. In her letter of June 27, 2003, Petitioner requested additional leave as what she claimed to be a reasonable accommodation under the Americans With Disabilities Act (ADA). Petitioner also said she wanted to work at home in lieu of leave. However, Petitioner provided no doctor's statement to contradict the one she submitted saying that she would be unable to work for six to eight weeks. On July 6, 203, Petitioner wrote Mr. Carr that she was accepting the alternative of retirement. In this letter, Petitioner again stated that she was not finished with treatment and would need additional time to complete the treatment. At the hearing, Petitioner admitted that she was unable to inspect daycare facilities to conduct the inspections required as an essential function of her position. In addition to the regular inspections, initial licensing and relicensing inspections, day care licensing counselors also have to make inspection in response to complaints received by the Department. Petitioner said that, as an accommodation, she wanted to be relieved from conducting inspections and be permitted to process the inspection reports prepared by other counselors and other paperwork. Although Petitioner contended at the hearing that she might have been able to work part-time, she admitted that after submitting the statement that she could not return to work for at least six to eight more weeks she had not gone back to her doctor to ask him to clear her for part-time work. Petitioner also speculated that she could have performed inspections on a part-time basis if she was provided with appropriate protective equipment and a mask. Petitioner stated her desire and request for more time off was because of fatigue. She did not request to work part-time, or protective devices as an accommodation at any time before she chose the option of retirement. Petitioner instituted an action before PERC contending that she was forced to either resign or retire in retaliation for her making of a complaint to Department's inspector general. That action resulted in a recommended order by the PERC hearing officer on April 21, 2004, that recommended that PERC dismiss Petitioner's claim. In that recommended order the hearing officer found as fact that: On June 23, 2003, Welch (Petitioner) sent a letter to District 13 Administrator Beth Englander, which included a doctor's note indicating she needed six to eight more weeks of leave. Englander responded to Welch and told her that, because her leave was exhausted and because of the operational needs of her unit, the Agency would not extend the leave. On June 27, Welch replied to Carr's June 17 letter and asked for accommodation under the Americans With Disabilities Act (ADA). The Agency did not specifically respond to this request. However, Welch was not entitled to ADA leave because she could not perform the essential functions of her job in June when she made her request. The full PERC in a final order of May 11, 2004, adopted the recommended order of the hearing officer, including this finding of fact. Petitioner had not been released by her doctor to return to work and perform her duties at the time she chose retirement in July 2003, and admitted that she was not able to come to work at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing Petitioner's charge of discrimination. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005. COPIES FURNISHED: Melody Welch 34548 Oak Avenue Leesburg, Florida 34788 Carolyn Dudley, Esquire Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 32399-9070 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On July 8, 1986, Respondent, Department of Health and Rehabilitative Services, sent Petitioner, Shirley Johnson, a letter to confirm her separation from employment as a Human Services Worker II in Pierce Cottage, Unit II, Facility IV, at the Gulf Coast Center in Ft. Myers. At the time, Johnson was a permanent employee of HRS. Her job at Pierce Cottage was to help care for 29 severely profoundly mentally retarded persons. On or about May 6, 1986, HRS' Gulf Coast Center instituted new policies for applying for authorization for leave from work. /1 No longer would Petitioner and fellow employees be required to notify their immediate supervisor, Twila Bevins, of their absence or tardiness. Instead, the employees are responsible only to notify the group shift supervisor on duty at Pierce Cottage. The employee only advises the group shift supervisor of the employee's intent to apply for authorization for leave and the amount and time the leave would be taken. The group shift supervisor does not approve leave. Authorization for leave must be obtained directly from the immediate supervisor, Twila Bevins, by explaining the reasons for the leave request which would entitle the employee to authorization for leave. Application for authorization for leave can be made either before or after the group shift supervisor is notified. However, no leave can be authorized for an employee who did not personally give notification of anticipated absence unless the employee is incapacitated. Petitioner is a mother of six. She also cares for her father, who has heart disease, and for her mother, who is overweight and has limited mobility. After a separation she has been reconciled with her husband, who, after being out of work, is now employed and contributes to the support of the family. On July 2, 1986, Petitioner and her immediate supervisor agreed that Petitioner would have July 3 and 4 off, but would work from 6:30 A.M. to 2:30 P.M. on July 5. Petitioner also was scheduled to work on July 6, 7 and 8, 1986. During the early morning hours of Saturday, July 5, between approximately 1:00 A.M. and 4:30 A.M., Petitioner's father had a heart attack and Petitioner and her husband went with him to the hospital and stayed there while he was being cared for. When they returned home at approximately 4:30 A.M., they were told by Petitioner's mother that Petitioner's brother was in jail in Ocala and that she was very concerned about her son. At her mother's request, Petitioner and her husband agreed to drive to Ocala to bail her brother out of jail. When they arrived in Ocala, Petitioner's husband, who was driving when they arrived in Ocala, was arrested for driving with a license under suspension and was himself put in jail. Petitioner herself then had to drive back to Ft. Myers to get money to bail her husband out of jail, drive back to Ocala to bail him out, and drive her husband back to Ft. Myers, a drive of a total of approximately 600 miles. Petitioner did not work and did not call in to work on Saturday, July 5. She was absent without authorized leave. On Sunday, July 6, 1986, Petitioner called into work at 6:30 A.M. to explain to the shift supervisor why she had been absent the previous day, and to notify him that she would not be in until approximately 10:00 A.M. However, tired from her ordeal the previous day and developing a severe headache, Petitioner did not work on Sunday, July 6. She called in later in the morning and spoke to one of the women working in Pierce Cottage but did not speak to the group shift supervisor. She was again absent without authorized leave. On the following morning, Monday, July 7, 1986, Petitioner called in at 6:25 A.M. to tell the group shift supervisor she would be late getting in to work. However, her headache got worse, and the pain traveled down to her neck and down one side of her body. The pain was so severe that she was crying uncontrollably. Although she still told her husband that she wanted to go to work to avoid any disciplinary problems, he talked her into letting him telephone Pierce Cottage to say that she would not be able to work on July 7. At approximately 6:45 A.M., her husband telephoned the group shift supervisor and told him that Petitioner would not be at work at all that day because of her physical condition. On Tuesday, July 8, 1986, Petitioner still was in approximately the same physical condition. At approximately 7:00 A.M., her husband telephoned the group shift supervisor at Pierce Cottage, reported her physical condition, and reported that Petitioner would not be in to work on July 8. Petitioner's husband also reported that Petitioner would probably have to see a doctor that day. Petitioner did indeed go to the Lee County Health Department on July 8, 1986, to be seen for her physical condition. Petitioner went to the Lee County Health Department because she and her husband could not afford to pay a private doctor. When Petitioner arrived at the Health Department at approximately 2:00 P.M., there was no doctor available to see her. She left at approximately 3:00 P.M. with a note confirming the she had been at the Health Department between 2:00 and 3:00 P.M., and that she needed a follow-up appointment. Although Petitioner still was suffering from a severe headache on Wednesday, July 9, 1986, she went to work, turning in her note from the Health Department. However, upon arriving, she was advised of HRS' July 8 letter confirming her separation from her employment. After reciting the grounds upon which HRS had taken the position that Petitioner should be deemed to have abandoned her position, the letter stated: "In the event it was not your intention to resign from employment, you are instructed to immediately contact me and provide a reasonable and acceptable explanation for your unauthorized absence from your employment." Petitioner was absent without authorized leave on July 5 and 6, 1986. Petitioner was not incapacitated from telephoning her group shift supervisor on July 7 and July 8, 1986. However, under the circumstances, it was reasonable for her to have her husband telephone for her. She did not intend to abandon her position. As of July 2, 1986, Petitioner had 27 hours of annual leave and 8 hours of compensatory time in her accumulative leave records and available for use July 5 - 8, 1986. She also would earn an additional 5 hours of annual leave and 4 hours of sick leave by July 10, 1986. This would have been enough to cover her absences and permit her to be paid during her absences if authorized and approved.
Recommendation Based upon the foregoing Findings of Fact' and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order granting the petition in this case and ruling that the circumstances of this case do not constitute an abandonment of Petitioner's position. RECOMMENDED this 3rd day of November, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of November, 1986.
The Issue Whether Petitioner received a salary overpayment for the pay period ending November 9, 2000, for which the State of Florida is entitled to be reimbursed.
Findings Of Fact Petitioner was employed by the State of Florida, Department of Juvenile Justice (Respondent) as a Group Treatment Leader, Class Code 5721, for a four-month period ending on November 6, 2000. This is a career service position. Petitioner resigned from the Respondent on November 6, 2000, due to significant personal problems associated with his marriage. Petitioner's resignation was accepted by his supervisor on the same day. Petitioner was not a permanent career service employee on the date of his resignation. Petitioner received a final payment for work performed for the period October 27, 2000 through November 5, 2000, on approximately November 20, 2001. Petitioner was concerned about the possibility of overpayment and contacted his local personnel office to inquire about it. Petitioner was told by his office personnel officer not to be concerned about it. At that time, Petitioner believed the matter to be resolved and no longer an issue. By letter dated May 16, 2001, Petitioner received correspondence from Respondent alleging that he was overpaid and seeking reimbursement in the amount of $233.53 for 21.0 hours of earned annual leave that was not compensable. The notification was not prompt, but is was made in a timely manner. On May 21, 2001, Petitioner requested a formal hearing before the DOAH. On June 26, 2001, Respondent notified Petitioner that a further audit revealed that he was entitled to be paid for 8.0 hours of special compensation leave. Applying these hours to the overpayment left a balance of 13.0 hours, equaling $144.57 due. While this matter was pending before DOAH, that amount was garnished from Petitioner's wages by the Comptroller, without prior notification. Petitioner had 21.0 hours of earned annual leave while employed by Respondent. Due to excessive working hours and the critical nature of the position with Respondent, Petitioner had very limited opportunities to use his leave during the time he was employed by Respondent. Due to the short time that he was employed by Respondent, Petitioner's earned leave was not transferable to the Department of Heath, his current employer. Petitioner seeks to withdraw his original letter of resignation and substitute a new letter, to be effective November 20, 2000. This would allow him to use the annual leave and special compensatory leave to account for the period in question and cancel the garnishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary enter a final order authorizing the garnishment of Petitioner's wages in the amount of $144.57 for salary overpayment for the pay period ending November 9, 2000. DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of November, 2001. COPIES FURNISHED: Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Sheldon S. Scrivener 5253 Jamaica Road Cocoa, Florida 32927-9058 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
