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
The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact At the time Respondent was advised that DHRS was processing his resignation from his position as Social and Rehabilitative Services Counselor II, effective August 31, 1983 (Exhibit 1), Fox had been employed by DHRS for some 12 years. This was termed a "voluntary" resignation by reason of abandonment of position. Fox had been on leave without pay from August 12, 1983, through August 19, 1983 (Exhibit 4). On Monday, August 22, a woman called Fox's supervisor and told him that Fox was in Miami, his sister had been involved in an automobile accident, and he would not be in to work. On August 24 Fox called his supervisor, Gilbertson, to advise that he was still with his sister but would be back to work by noon on Friday, August 26. During this period, Monday through Friday, Fox was placed on family sick leave. At noon on Friday Fox had exhausted all his sick leave. Fox did not report to work until September 2, 1983, at which time he was given a copy of Exhibit 1, the original of which had been sent to his residence by certified mail. Fox gave no explanation for his absence but took the copy of the letter given him and left abruptly. He was not asked to explain his absence, nor did he offer any such explanation. Fox had earlier had differences with his supervisor, Gilbertson, over what Gilbertson considered excessive use of sick leave by Fox. Fox presented no evidence regarding his period of unauthorized absence from August 26 until he returned September 2. The one witness he called had frequently used sick leave without incurring the displeasure of Gilbertson. However, this witness in the recent past has had his gallbladder removed, hemorrhoid problems, and hepatitis; and had given no reason for anyone to suspect he was abusing the use of sick leave.
The Issue Whether or not Petitioner, pursuant to Rule 6C-770 F.A.C., abandoned her position as a Secretary Specialist, thereby resigning from Florida State University by being absent without leave for three consecutive days.
Findings Of Fact At all times material, Petitioner, Teresa Loewy, was employed as a Secretary Specialist in the Department of Educational Leadership at Florida State University (FSU). On October 22, 1989, Petitioner Loewy reported that she had suffered a head injury as a result of an on-the-job accident. That same day, she was seen at Tallahassee Memorial Regional Medical Center and released. On October 23, 1987, FSU placed Petitioner on administrative leave for 40 hours. Contact was made by Petitioner and her husband, Mr. Samuel Loewy, with Dr. David Leslie, Department Chairman, with Nina Mingledorff, Department Staff Assistant and Petitioner's immediate supervisor, and with Motney Gray, FSU Workers' Compensation Supervisor. The Loewys were informed that a worker's compensation report had been completed and forwarded by the Department to Ms. Gray. This is the first formal step in an employer acknowledging that workers' compensation or medical benefits may be due a worker pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law." By letter dated November 3, mailed November 5, and received by Petitioner on November 10, 1987, Chairman Leslie informed Petitioner in pertinent part as follows: As you may be aware, you have been on disability leave for a 40 hour work period. Beyond that limit, this office will not certify any additional leave for you unless we receive medical proof that you are unable to return to work. Although you may apply for workers' compensation, I believe that similar proof will be required by that office. Absent any further communication from you and absent proof to the contrary, we assume that you are capable of returning to work and have elected not to do so (R-3). By letter of November 5, 1987, (R-9) Motney Gray notified Petitioner that Ms. Gray's communications with Joe D. Rawlings, M.D. had convinced Ms. Gray that Petitioner was not still impaired and was able to work and that Ms. Gray was terminating workers' compensation medical benefits and Petitioner's disability leave as of that date. By letter dated November 12 and received November 13, 1987, Robert L. Lathrop, Dean of the College, informed Petitioner as follows: Based on Motney Gray's letter of November 5, to you, we are hereby notifying you as of 8:00 a.m. November 6, you have been on unauthorized leave. Because of your unauthorized leave of absence, I am writing this letter to determine your intentions concerning continued employment at Florida State University. You must report for work immediately, or provide your supervisor, Mrs. Nina Mingledorff, with appropriate medical certification by 4:30 p.m., Monday, November 16, or it will be assumed you have voluntarily resigned due to abandonment of your position. (R-1) In response, on November 16, 1987, Mr. Loewy, on behalf of his wife, delivered to the Department a handwritten note from Dr. Rawlings, (R-2) which read: To whom it may concern: Mrs. Teresa Loewy is still under my care for headaches dating back to her injury on 10-22-87. At that point in time, Dr. Rawlings could be accurately characterized as Petitioner's primary treating physician pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law". Copies of this letter were seen by Nina Mingledorff and by Annette Roberts, FSU Employee Labor Relations Coordinator. On November 17, 1987, Petitioner and Mr. Loewy, together with another couple, visited Petitioner's workplace. Their purpose was to have Petitioner physically on the employment premises to demonstrate that Petitioner was unable to work due to her injury. At that time, the Loewy faction spoke with Annette Roberts, with John Goldinger, Assistant Personnel Director, and with Dean Lathrop. Initially, Petitioner was given a termination letter prepared for the Dean's signature, based upon Petitioner's three consecutive days' absence without prior authorization, which letter was as yet unsigned. However, as a result of the Loewy faction's face-to-face interview with Dean Lathrop, a new memorandum was prepared and actually signed by the Dean. This second communication was addressed to John Goldinger and read as follows: I am hereby authorizing leave of absence for Ms. Teresa A. Loewy beginning November 16, 1987, at 3:00 p.m. and ending no later than 10:00 a.m. on November 20, 1987. The purpose of this leave is to provide time for Mrs. Loewy to secure medical certification that she is unable to drive herself to work. (R-4) The effect of this memorandum, signed by Dean Lathrop and handed to Petitioner, was to supersede his other unsigned/unconsummated correspondence attempting to terminate her under the three days' absence rule. On November 20, 1987, Mr. Loewy obtained a two page letter from Dr. Rawlings (R-6) dated the preceding day. That letter, which Mr. Loewy was unable to pick up at Dr. Rawlings' office in Thomasville, Georgia, until shortly after the 10:00 a.m. November 20 deadline established by Dean Lathrop's November 17 signed memorandum, may be summarized as follows: Dr. Florek, a board certified neurologist had diagnosed Petitioner as having post-concussive syndrome on October 29, 1987. Sometime between November 3 and 6, Dr. Bridges, an opthomologist had diagnosed her eye examination as "essentially within normal limits". With the concurrence of FSU's Motney Gray, Petitioner was scheduled for an MMPI (a psychological assessment), the results of which had not yet been received on the date of Dr. Rawlings' letter, November 19, 1987. She was also scheduled for an MRI (magnetic resonance imaging, a type of x-ray particularly helpful in determining head and soft tissue injuries) which was scheduled for November 24, 1987. Dr. Rawlings confirmed that the Petitioner continued to come to him with the subjective complaints of headaches, blurred vision, and diplopia. The overall tone of his letter is that Dr. Rawlings thought Petitioner could work as of November 19, 1987, although he did not specifically say so. His rather vague summation was, "I have relayed to Mrs. Loewy [on] a number of occasions that I feel this problem will be self limited and that all attempts will be made on my part to not give her any type medication which might be habit forming." (R-6) On his wife's behalf, on November 20, 1987, at approximately 11:30 a.m., Mr. Loewy presented Dr. Rawlings' November 19, 1987 letter in a sealed envelope to Evelyn Ashley, Dean Lathrop's Administrative Assistant, and also gave a copy of it to Nina Mingledorff. Dean Lathrop was not in the workplace that day. During the time he was at Petitioner's workplace on November 20, 1987, Mrs. Ashley presented Mr. Loewy with a request form for a leave of absence without pay. She and others emphasized to him that the completed form must specify a date the Petitioner could return to work, a fact clearly in contention at that point. He was requested to have Petitioner complete the form and return it. He was not told how long Mrs. Loewy would have in which to complete and return the form. From this point forward the testimony is in sharp conflict. It is debatable whether Mr. Loewy was concerned about the effect such a "form" request might have upon his wife's job status or her incipient workers' compensation claim, whether he merely felt she was entitled to leave with pay, or whether he was ever told he could sign the form for his wife. It is clear, however, that Mr. Loewy refused to complete the form on Petitioner's behalf and also refused to take it to her unless he could add a notation to the form that her job would not be jeopardized by requesting such voluntary leave. Having assessed the candor and demeanor of the respective witnesses and the internal and external credibility and consistency or lack thereof of their respective versions of the events and conversations of November 20, 1987, it is found that FSU personnel refused to permit any additions or deletions to the form. They also refused to permit Mr. Loewy to submit a separate explanatory note with regard to the Loewys' position on the subject, even though it was John Goldinger's view at the time of formal hearing that it had always been normal FSU procedure to permit attachments and addendums to other requests for leave without pay. The standard forms requesting leave without pay which were presented by FSU employees to Mr. Loewy therefore were never given to Petitioner, completed by her, or submitted by the Petitioner to the University, although Mr. Loewy was repeatedly told that Petitioner's job would not be held for her unless the forms were filled out and submitted. Dr. Rawlings' November 19 letter (R-6) was not transmitted by his subordinates to Dean Lathrop at or near the time Mr. Loewy submitted it to them. Neither did Chairman Leslie contemporaneously see Exhibit R-6. According to Dr. Leslie, no one below his administrative level had the authority to determine the sufficiency of that "excuse" and the appropriate person to have decided that issue would have been Dean Lathrop. Annette Roberts and John Goldinger agreed that leave requests often went through Dean Lathrop. Although the Dean might not vary duly promulgated rules, the evidence as a whole, including Dean Lathrop's prior informal extension of Petitioner's leave, supports Annette Roberts' assertion that Dean Lathrop had the discretion to either effect the abandonment or increase the grace/leave period he had previously granted Petitioner. Thereafter, Petitioner never did return to work. On Wednesday, November 25, 1987, Dean Lathrop, unaware of the contents of the November 19 letter from Dr. Rawlings, and therefore never having decided on its sufficiency or lack thereof, prepared the following termination letter to Petitioner: You have been absent without leave of absence for 3 or more consecutive workdays . . . [Rule 6C-5.770(2)(a) is quoted] . . . Based on the above stated rule, you are deemed to have resigned from your position. . . effective this date, November 25, 1987 at 10:00 a.m. (R-10) Bracketed material and emphasis provided] It is clear from the foregoing, that regardless of Petitioner's not having submitted any leave without pay request forms, and regardless of Petitioner's nebulous status as to leave after her initial 40 hours disability leave (See Findings of Fact 4-9 supra), Dean Lathrop counted toward implementation of the three days' abandonment rule only the three consecutive "working days" (presumably 24 work hours) elapsing after his own ultimatum time and date of 10:00 a.m., November 20. The Dean's reasoning, as explained by him at formal hearing, was that the Petitioner had not requested a leave of absence. Evelyn Ashley stated that she had told Dean Lathrop both that the doctor's letter (R-6) had been submitted and also that the Dean could do nothing about processing leave for Mrs. Loewy because R-6 had to be attached to a "request for leave form" and that "form" had not been submitted by the Petitioner. Dean Lathrop testified that if he had seen R-6 and still had any doubts of its sufficiency, he probably would have approved leave on the same basis as he had on November 17, at least until he had the opportunity to consult medical personnel further. It was never determined by FSU personnel prior to formal hearing whether the December 19 communication from Dr. Rawlings (R-6) was sufficient under the terms of the Dean's November 17 memorandum granting further leave up to 10:00 a.m., November 20, 1987. As of Friday, November 20, 1987, Petitioner had only 1.7 hours annual leave and 3.5 hours sick leave status to draw upon. After her separation date, Petitioner was paid for 1.7 hours of accrued annual leave; she was not paid for any accumulated sick leave. Subsequently, Petitioner and FSU became embroiled in workers' compensation litigation and entered into a "Stipulation and Joint Petition" which was adopted and approved by an Order of the Deputy Commissioner dated August 8, 1988. (P-3) 1/ Admitted facts found therefrom which are relevant, material, and significant to the instant cause and which are not cumulative to any of the facts found supra, are as follows: . . . She [Petitioner] was scheduled for an MMPI which was done on November 20, 1987. An MRI scan of the brain was done November 23, 1987 and was interpreted as normal. . . . Dr. Bridges examined the Employee [Petitioner herein] on 11/3/87 and found irregular visual fields, more constricted in the right eye, but otherwise normal examination. The employee was then seen by Dr. Thomas J. Perkins who diagnosed occipital syndrome on the right side and recommended treatment by Dr. Seay. . . . The employer/carrier and employee/claimant stipulate and agree that the maximum medical improvement date is April 25, 1988, pursuant to the medical report of Dr. James T. Willis. [Bracketted material provided] It is clear on the record that Motney Gray, FSU's Coordinator for Insurance Risk, informed Dr. Rawlings on several occasions that it was "possible" that workers' compensation would pay for another employee to transport Petitioner from her home in Thomasville, Georgia, to work at FSU in Tallahassee, Florida, but it is not clear that this offer was ever made any more concrete than as a "possibility", and the offer apparently was never made directly to the Petitioner by any representative of FSU. It is clear that, at some point, Dr. Rawlings conveyed this offer to the Petitioner, but it is not clear on the record that this information ever reached Petitioner at any time prior to November 25, 1987 and simultaneously with a period she also was not taking a drug prescribed by some physician. Petitioner was treated, not just by Dr. Rawlings, but by Doctors Florek, Bridges, Seay, Willis, Hogan, and Perkins. At some point in time, Dr. Willis, a chiropractic physician, became Petitioner's primary treating physician. Moreover, it is clear that Dean Lathrop, who was Petitioner's only superior with authority to determine the sufficiency of the letter of certification (R-6), was concerned about Petitioner's ability or inability to drive herself, not whether someone else could or would drive her to work. In addition to the oral communications to Mr. Loewy on November 20, FSU had directly advised Petitioner concerning the general nature of its abandonment rule and of FSU's requirements for prior approval of all leave requests, first by circulating standard informational documents to all employees, and secondly, by its various letters to Petitioner which are described supra. The parties stipulated that in the event abandonment was not proven, any back wages awarded to Petitioner should be subject to all appropriate class pay increases, and should be reduced by the workers' compensation and unemployment compensation already paid to Petitioner, and should be further reduced by any income earned by her.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered: Finding Petitioner has not abandoned her position. Reinstating Petitioner to her position. Ordering payment of backpay and emoluments from November 25, 1987, less unemployment and workers compensation paid by Respondent and less mitigation earnings of Petitioner, pursuant to the parties' stipulation. Denying any attorney's fees. DONE and ENTERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner was formerly employed by Respondent as a Human Services Worker assigned to the Landmark Learning Center, a residential facility located in Dade County. She began her employment on May 10, 1985. On January 13, 1989, Petitioner received the following memorandum from the Residential Services Director of Facility I at Landmark: In reviewing your time and attendance record from August, 1988, I have observed that you are exhibiting excessive absences and/or tardiness. These frequent absences place an unfair burden on your coworkers and interfere with the operations of this center. Therefore they will no longer be tolerated. Effective on the date you receive this communication, the following restrictions will be in effect: As always, you are expected to have all leave time approved in advance by your immediate supervisor. You are expected to submit a doctor's statement justifying your absence prior to the approval of any sick leave, annual-sick leave, or family-sick leave. You will not be allowed to substitute any other type of leave for these absences. Failure to comply with the above restrictions will result in disapproved leave without pay for the dates in question, and a recommendation for disciplinary action based on absence without authorized leave. In addition a continued pattern of excessive absence could result in disciplinary action for excessive absence/tardiness. All disciplinary [action] will be in accordance with HRS-P-60-1, Employee's handbook. I am confident that you will correct this situation in a satisfactory manner. At no time prior to the termination of Petitioner's employment with Respondent were the "restrictions" imposed by this memorandum lifted. In early 1990, Petitioner sustained an on-the-job injury. As a result of the injury, Petitioner was on authorized leave from February 25, 1990, until April 4, 1990. When she returned to work on April 5, 1990, Petitioner was assigned to "light duty" in the field office of which Sylvia Davis, a Senior Residential Unit Supervisor, was in charge. Petitioner's working hours were 6:00 a.m. to 2:30 p.m. Petitioner was advised that Roberta Barnes would be her immediate supervisor during her "light duty" assignment. On April 5, 1990, Petitioner worked six and a half hours. She was on authorized leave the remainder of her shift. On April 6 and 7, 1990, she worked her full shift. On April 8 and 9, 1990, Petitioner did not report to work. She telephoned the field office before the beginning of her shift on each of these days and left word that she would not be at work because she was experiencing pain in her lower back and right leg; however, she never received supervisory authorization to be absent from work on these days. April 10 and 11, 1990, were scheduled days off for Petitioner. At approximately 11:00 p.m. on April 11, 1990, Petitioner telephoned the field office and gave notice that, inasmuch as her physical condition remained unchanged, she would not be at work the following day. Petitioner did not report to work on April 12, 1990. Although she had telephoned the field office the night before to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on April 12, 1990. On April 13, 14, 15 and 16, 1990, Petitioner did not report to work because she was still not feeling well. She neither telephoned the field office to give advance notice of her absences, nor obtained supervisory authorization to be absent on these days. April 17 and 18, 1990, were scheduled days off for Petitioner. Prior to the scheduled commencement of her shift on April 19, 1990, Petitioner telephoned the field office to indicate that she would not be at work that day because she had a doctor's appointment, but that she hoped to return to work on April 20, 1990. Petitioner did not report to work on April 19, 1990. Although she had telephoned the field office to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on that day. On April 19, 1990, Petitioner was sent the following letter by the Superintendent of Landmark: You have not called in or reported to work since April 12, 1990 and therefore you have abandoned your position as a Human Services Worker II and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System. Your resignation will be effective on the date that you receive this letter or on the date we receive the undelivered letter advising you of your abandonment. You have the right to petition the State Personnel Director, 530 Carlton Building, Tallahassee, Florida 32304 for review of the facts. Such petition must be filed within twenty (20) calendar days after receipt of this letter. At approximately 12:40 a.m. on Friday, April 20, 1990, unaware that she had been deemed to have resigned her position, Petitioner telephoned the field office to give notice that she would be out of work until after her doctor's appointment on Monday, April 23, 1990. On April 23, 1990, Petitioner again telephoned the field office to advise that she had to undergo further medical testing and therefore would remain out of work until the required tests were performed. Petitioner's call was transferred to Elaine Olsen, a Personnel Technician II at Landmark, who told Petitioner about the letter the Superintendent had sent to Petitioner the previous Thursday. Petitioner received the letter on April 30, 1990. Petitioner did not report to work during the period referenced in the Superintendent's letter because she was not feeling well. She did not intend, by not reporting to work on these days, to resign or abandon her position. It was her intention to return to work when she felt well enough to do so.
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 (1) finding that Petitioner did not abandon her career service position, and (2) directing Respondent to reinstate Petitioner with back pay. DONE and ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. STUART M. 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 May, 1991.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work). Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits. DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1991. COPIES FURNISHED: Thomas J. Carpenter 1669 Flamingo Blvd. Bradenton, FL 34207 Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services P.O. Box 1415 Punta Gorda, FL 33951-1415 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Anthony N. DeLuccia, Esquire Department of Health and Rehabilitative Services P.O. Box 06085 Fort Myers, FL 33906
The Issue The issues to be resolved in this proceeding, under the relevant provisions of Chapter 760 Florida Statutes, concern whether the Petitioner was discriminatorily discharged because of her race and purported disability.
Findings Of Fact The Respondent, Escambia County Area Transit, Inc., operates a passenger bus service in the area of Escambia County, Florida. The Petitioner was employed as a bus operator since August of 1999. On September 7, 2006, the Petitioner took FMLA leave for a condition involving migraine headaches. That leave extended through October 9, 2006. The Petitioner returned to work from that FMLA leave on January 9, 2007, however. A notice was sent to the Petitioner from Dawn Groders, an administrator with the Respondent, on April 19, 2007, informing the Petitioner that she had exhausted her FMLA leave for the twelve month "rolling calendar year" and that she would not begin accumulating additional FMLA leave until October 9, 2007. The Respondent's policy regarding FMLA leave is as follows: "If a family leave of absence exceeds 12 weeks on a rolling twelve month period, the employment status may be in jeopardy, which could result in termination of employment." There is a labor contract between the Respondent and the Amalgamated Transit Union, Local 1395, the Petitioner's union. That contract contains no provision regarding warning or noticing an employee about obtaining exhaustion of FMLA leave. On October 19, 2007, the Petitioner commenced additional FMLA leave for an injury to her finger. The collective bargaining agreement contains a provision regarding a discretionary leave of thirty days which may be discretionarily granted by the employer. Because the Petitioner had previously exhausted her FMLA leave, based on the rolling twelve month calendar, and had yet to re-acquire any leave, the Petitioner was granted discretionary leave by the Respondent because of having exhausted her FMLA leave. The Petitioner contends that she should have been given alternative light-duty work by the Respondent. On December 3, 2007, however, the Petitioner received a letter from Richard Deibler, the Respondent's Director of Safety Training and Planning, which stated that there was no temporary alternative- duty work available at that time. (Respondent's Exhibit 4, in evidence). The witness for the Respondent established that there was no available part-time or light-duty work at the time the Petitioner was on FMLA leave or attempted to be on FMLA leave. The union contract does not require that part-time, light-duty work be available, with the exception of one individual who was so authorized and who was "grandfathered-in" in that status from a previous union contract. The Petitioner presented no persuasive evidence which would establish that light-duty, part-time work was available at the time in question, in late 2007. Thereafter, the Petitioner remained on re-activated FMLA leave due to her previous injury during the month of December 2007. On December 11, 2007, she received a notice from the Respondent to the effect that she must report for duty by December 27, 2007, because of exhaustion of her FMLA leave and was advised that her employment might be terminated if she were not at work by that date. On December 27, 2007, the Petitioner failed to return to work and her employment was terminated because of exhaustion of her FMLA leave, in accordance with the Respondent's policy. As of the date of her termination, the Petitioner had used a total of 64 days of FMLA leave during the course of the rolling calendar year, dating back to December 27, 2006. The Respondent was aware that the Petitioner had exhausted her FMLA leave based on a rolling calendar year in October 2007, and yet still extended her leave, not just for the referenced thirty days discretionary leave, but for nearly ninety additional days. The Petitioner has asserted no dispute with the number of days the Respondent contends (and the evidence supports) that she was not present at work due to using FMLA leave or other forms of leave, such as discretionary leave. The Petitioner offered no persuasive evidence to show that she was terminated from her employment due to her race or any other reason aside from exhaustion of her FMLA leave and the company's policy with regard thereto. The Respondent's representative and witness established, with her testimony, that the Petitioner was not terminated because of any perceived or actual disability. Although the Respondent knew of the medical reasons the Petitioner stated necessitated her absence, the Respondent was not aware that any physical impairment had resulted in an impairment of any major life activity of the Petitioner. The testimony of Ms. Chizek, is accepted as persuasive in establishing that the Petitioner was not terminated because of any perceived or actual disability or for reasons of her race, but rather was terminated solely because she had exhausted her FMLA leave and in fact the substantial amount of discretionary leave voluntarily granted to her by the Respondent. The Petitioner presented no persuasive evidence that employees or former employees, outside her protected class (African-American) had been treated dissimilarly and more favorably, for the same or similar violations of company policy, to wit, the exhaustion of FMLA leave and subsequent continued failure to return to work. In fact, the persuasive, preponderant evidence shows that the Respondent uniformly applied its policy regarding FMLA exhaustion and subsequent termination of employment. Patty Chizek conducted an audit of all employee files in the fall of 2007 concerning the question of FMLA exhaustion. That audit was not an attempt to single out the Petitioner in any way due to her race or any disability, if one existed. Her investigation revealed that, in fact, a number of employees had exhausted their FMLA leave. They were all terminated during the month of December 2007, similarly to the Petitioner. Thus, Mary Nelson, Nadine Harris, Eurethia Davies, and Linda Donaldson, all of whom are Caucasian women, were terminated during December 2007 because of exhaustion of their FMLA leave. Derrick Roberts, an African-American male, was terminated during that month, for the same reason. All of these employees were terminated for that reason after not being able to return to work for a reasonable period of time after exhaustion of FMLA leave. Moreover, the Petitioner testified that she was first absent from work due to a migraine headache-related medical problem and, on the later occasion, due to injury of her finger, apparently caused by wrestling with the steering wheel of her bus, after it ran on the curb of a street she was traversing. Although it might be recognized, and indeed is undisputed, that these injuries or medical conditions were experienced by the Petitioner, the Petitioner did not establish that they truly impaired her in a major life activity. Even if they were significant, physical reasons for being absent from work for some of the time during which the Petitioner was absent, she did not establish, with persuasive evidence, that they impaired a major life activity and constituted any permanent, or relatively permanent, impairment of her ability to perform the duties of her job. Even if the Petitioner had established that there was a permanent impairment which might constitute a disability, she did not establish that the Respondent had refused a reasonable request for an accommodation therefor. Although the Petitioner requested light-duty employment, the Respondent established with persuasive evidence that, at the time it was requested by the Petitioner, there was no such employment available. Therefore, it was not an accommodation the Respondent could reasonably offer the Petitioner at that time, even if the Petitioner had a known, perceived or recognized disability at that time.
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, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety. DONE AND ENTERED this 10th day of December, 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 10th day of December, 2009. COPIES FURNISHED: John J. Marino, Esquire McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 James N. Foster McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 Tricia Dubose 1349 43rd Ensley Street Birmingham, Alabama 35208 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Wilson Yawn, Maintenance Engineer, Chipley, Florida. On April 15, 1985, Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment. Petitioner was absent from work without authorized leave on August 17, 18, 19, and 20, 1987. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent. Petitioner was formally advised by certified letter dated August 21, 1987 that Respondent considered him to have abandoned his job and to have resigned from the Career Service.
The Issue The issue in this case is whether Petitioner was overpaid in the amount of $809.46; and, if so, whether she should be required to repay that amount to Respondent.
Findings Of Fact At all times material to this matter, Petitioner was a career service employee of Respondent until her separation in October 2018. Petitioner went into labor unexpectedly in December 2017, and as a result, she began maternity leave. Petitioner was not present at work and did not submit a timesheet for the timeframe of December 29, 2017, through July 2, 2018. Petitioner testified that she was unable to submit her timesheets electronically and for this reason, someone else submitted them on her behalf. The evidence presented at hearing did not show who submitted her timesheets. By May 23, 2018, Petitioner had exhausted all of her annual, sick, and donated leave. Once an employee of Respondent no longer has sick leave remaining, annual leave is used to cover any shortages of sick leave. An employee may use donated leave to cover any shortages. Once an employee has exhausted annual, sick, and donated leave, the employee cannot be paid for additional time taken as leave. The additional time during leave is considered “leave without pay” (“LWOP”). Petitioner was placed on LWOP from March 23, 2018, through July 2, 2018, because she had exhausted all of her leave. Although Petitioner was on LWOP during the pay period of May 4, 2018, through May 17, 2018, a pay warrant for 80 hours of work was inadvertently issued on May 25, 2018, for that pay period. Consequently, Petitioner was overpaid $809.46. Petitioner was not responsible for the overpayment. She did not submit her timesheets and, thus, did not falsify them. Petitioner testified that her supervisor verbally advised her that she had received donated leave, but she could not recall the amount. Petitioner also did not offer any written representation from her supervisor or otherwise regarding her leave. The overpayment resulted because Petitioner's timesheet for LWOP for the pay period of May 4, 2018, through May 17, 2018, was not timely approved. Upon discovery of this error, Respondent’s human resources office conducted a manual audit of Petitioner’s leave. Ms. Anderson completed the leave audit and discovered that Petitioner had been overpaid for the May 4, 2018, through May 17, 2018, pay period. On May 30, 2018, the Department sent Petitioner a certified letter requesting the overpaid amount of $809.46. Petitioner became aware of the error when she received the Department’s letter. Petitioner’s pay was transmitted to her bank account electronically via direct deposit. However, she was not monitoring her bank account closely and did not immediately realize that she had been erroneously overpaid. At the time of the final hearing, Petitioner had not paid the overpayment. Petitioner stated she could only pay $40 per month to repay the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final Order requiring Shanace Isaac to repay Respondent $809.46. DONE AND ENTERED this 7th day of March, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 7th day of March, 2019. COPIES FURNISHED: Shanace Isaac Post Office Box 101 Hastings, Florida 32145 (eServed) Riley Michelle Landy, Esquire Department of Health Bin A-02 5052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Shannon Revels, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 (eServed) Louise Wilhite-St Laurent, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 (eServed)
