The Issue Whether the petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact 2. On April 14, 1983, petitioner received a copy of the "Employee Handbook" published by the Department of Transportation. Job abandonment is explained in the Employee Handbook as follows: 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 policy. The petitioner was absent without authorized leave on April 13, 14 and 15, 1987. Petitioner did not appear for work on those days and did not call the office to explain or report his absence. On April 16, 1987, petitioner called the office at approximately 8:00 a.m. to say that no one had come to pick him up. A fellow employee sometimes furnishes petitioner's transportation. By the time petitioner called in to work, he had been absent three consecutive days without authorization. Petitioner had previously been warned about his absenteeism. On March 17, 1987, petitioner was placed on unauthorized leave without pay due to his failure to report to work or notify his supervisor. On March 18, petitioner was sent a letter notifying him that he had to report by March 24, 1987, or he would be dismissed. Thus, petitioner was well aware that he had to notify his supervisor of any absences.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Transportation and finding that Fred P. Noble abandoned his position and resigned from the Career Service. DONE AND ENTERED this 28th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 28th day of December, 1987. COPIES FURNISHED: Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450 Mr. Fred P. Noble 2516 Queen Street South St. Petersburg, Florida 33705 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
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 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
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.
Findings Of Fact Prior to February 25, 1986, the Petitioner, Tommie Miller, was employed by the Respondent, the Department of Health and Rehabilitative Services (HRS) at the Brevard Regional Juvenile Detention Center as a detention child care worker I. During the time relevant to this case, June and July, 1987, Ms. Miller's supervisor was Michele McKinley, detention center superintendent. On February 25, 1986, Ms. Miller injured her lower back, injuring two nerves. The injury was job connected, and Ms. Miller was eligible for and received workers compensation benefits. Ms. Miller was receiving workers compensation benefits during the period relevant to this case, July 10 through 27, 1987. With the exception of a brief time during the period of June 22 through 24, 1987, Ms. Miller was absent from work from February 1986 through August 10, 1987, and thereafter, for that matter. On June 24, 1987, she reinjured her back at work. During the months she was out of work, Ms. Miller was treated in various rehabilitation programs. In June and July, 1987, she was receiving treatment from Woods Rehabilitation Services, Inc., and the rehabilitation nurse assigned to her case was Joan Patterson. R. Ex. 5. Ms. Miller lives 25 miles from the detention center, and testified that in June and July of 1987, her back hurt too much to allow her to drive to work at the detention center. Ms. Miller had exhausted her sick leave by July 22, 1987. It is inferred that she was on approved leave without pay by July 22, 1987. This inference is based on the fact that nearly a year and a half had elapsed from the date of the injury, and normal sick, annual, and compensatory leave would have been exhausted. This inference is also based upon the rules concerning the proper way to characterize the absence of an employee due to a job connected disability discussed in the conclusions of law. It is inferred that on July 22, 1987, the period of approved leave without pay was indefinite. This inference is based on the findings of fact which follow and the lack of evidence of a definite period of approved leave without pay. On June 22, 1987, Dr. Stanley Kaplan provided a written statement excusing Ms. Miller from work. On June 29, 1987, Ms. Miller was again seen by Dr. Kaplan for evaluation. Dr. Kaplan performed the normal therapy he was then performing for Ms. Miller, but did not tell her she could return to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on June 29, 1987. On July 17, 1987, Ms. Miller visited Dr. Stanley Kaplan for rehabilitative treatment. Dr. Kaplan did not tell Ms. Miller at that time that she could go back to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on July 17, 1987. On July 22, 1987, Ms. McKinley wrote a certified letter to the Petitioner, Tommie Miller. R. Ex. I. The letter in its entirety stated: I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87. She further reported that you stated you didn't understand that you could return to work. In addition, we have had no further contact from you since 6/24/87. I am now going to have to require you to report back to work on 7/27/87, by 9:00 a.m. If you do not report back to work on this date or provide the appropriate medical documentation as to your absence, we will have to assume that you have abandoned your position with HRS. Thus, the letter of July 22, 1987, explicitly gave Ms. Miller two options: report to work at 9:00 a.m. on July 27, 1987, or "provide the appropriate medical documentation as to your absence." From the contents of the letter, it is concluded that when the letter was written, Ms. McKinley thought that Dr. Kaplan had released Ms. Miller to return to work on July 10, 1987. It is also concluded from the contents of the letter and from R. Ex. 5, which Ms. McKinley testified she had in her possession and was aware of when she wrote the July 22, 1987, letter, that Ms. McKinley was aware on July 22, 1987, that Ms. Patterson had said that Ms. Miller had said that she (Ms. Miller) did not understand that Dr. Kaplan had said she could return to work. On July 22, 1987, Ms. Miller was examined by Richard P. Newman, M.D. On July 24, 1987, Ms. Miller received the letter of July 22, 1987. As soon as she received the letter, Ms. Miller called Ms. McKinley on the telephone. Ms. Miller told Ms. McKinley that her current medical problem was an inability to drive to work, but that she could work if she was able to travel to work. Ms. McKinley told Ms. Miller that she had not received a written report from a physician concerning Ms. Miller's condition since June 24, 1987. Ms. McKinley told Ms. Miller that she (Ms. McKinley) still needed medical documentation, and that she could not authorize leave based on her oral report without medical documentation. Ms. Miller then told Ms. McKinley that Ms. Patterson at the Woods Rehabilitation Services was supposed to send the doctor's report to Ms. McKinley. During the telephone call, Ms. McKinley did not ask her (Ms. Miller) to personally deliver the doctor's report, and did not tell Ms. Miller that reliance upon Ms. Patterson was inappropriate. Moreover, Ms. McKinley did not warn Ms. Miller that if Ms. Patterson fi1ed to deliver the report by July 27, 1987, that Ms. Miller would automatically forfeit her job. At the time of the phone call from Ms. Miller, Ms. McKinley was in possession of R. Ex. 5. The top of page two of that document advised Ms. McKinley that Ms. Miller was scheduled for an evaluation by Dr. Newman on July 22, 1987. In the fourth paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Ms. Miller would attend the appointment with Dr. Newman. In the seventh paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Nurse Patterson felt that Dr. Newman's evaluation was important to an assessment of the current status of Ms. Miller's medical condition. These findings are based upon what is in fact stated in R. Ex. 5 and known to Ms. McKinley as what Ms. Patterson had written. No finding is made as to whether what is stated in R. Ex. 5 is true. It is concluded that during the telephone conversation with Ms. Miller on July 24, 1987, Ms. McKinley knew that Ms. Miller was to have been evaluated by Dr. Newman on July 22, 1987. At the time of the phone call on June 24, 1987, Ms. McKinley did not ask Ms. Miller to tell her what Dr. Newman had determined concerning Ms. Miller's medical condition, and did not ask Ms. Miller about Dr. Newman's evaluation two days earlier. As a result, during the July 24, 1987, telephone conversation, inexplicably neither Ms. McKinley nor Ms. Miller mentioned anything about Dr. Newman's evaluation on July 22, 1987. R. Ex. 2A is the report of Dr. Newman with respect to the visit of July 22, 1987. The report indicates on its face that Woods Rehab Services and Ms. Tommie Miller are listed as recipients of the "cc." The report of Dr. Newman of July 22, 1987, R. Ex. 2A, states in part: At this time, my feeling would be that the drive to and from Titusville is causing her more harm than good. Since she works for the state, it would be in the best interest of all parties concerned to move her to a position in the Rockledge area because she will be able to commute a very short drive and would be quite capable of performing this type of sedentary work. On July 24, 1987, Ms. Miller called Dr. Newman to get another written report, and asked Dr. Newman to send that report to Ms. Patterson at Woods Rehabilitation Center. R. Ex. 2B is that report. The report of July 24, 1987, shows that Woods Rehabilitation Services, Inc., but not Ms. Miller, was the recipient of a "cc." The report of July 24, 1987, R. Ex. 2A states in part: It is not the act of driving itself, but it is the riding in the car that is bothering her back and I do not think that she should be having to travel by car 25 miles in either direction to work when she could be doing a similar job virtually around the corner from her house. It is concluded that the report of Dr. Newman, in written form, supported Ms. Miller's oral statement to Ms. McKinley that she was physically unable to drive to the detention center due to the distance. These findings of fact are based upon what in fact is printed on the face of the reports, and is not a finding that the statements contained in the reports are true. Ms. Patterson told Ms. Miller that she would send the report to Ms. McKinley. Ms. Patterson told Ms. Miller that she did communicate with HRS. No finding is made as to the truth of Ms. Patterson's statement, but only that Ms. Miller in fact heard Ms. Patterson make this statement to her. Ms. Miller thought Ms. Patterson would and did send the medical report of July 22, 1987, to Ms. McKinley. Ms. Patterson did not send Dr. Newman's medical report to Ms. McKinley. There was a prior pattern of dealing between the parties such that Ms. Patterson, with reasonable frequency, though not routinely, communicated to Ms. McKinley concerning the current medical status of Ms. Miller with respect to her ability to resume her job with HRS. This finding of fact is based upon the testimony of Ms. Miller, who stated that she relied upon Ms. Patterson to keep Ms. McKinley informed, and the testimony of Ms. Miller that on July 24, 1987, she told Ms. McKinley by telephone that Ms. Patterson would send the medical documentation. It is also based upon the testimony of Ms. McKinley, who testified that Ms. Patterson did, from time to time discuss with her Ms. Miller's medical condition and job alternatives. But most important, this finding is based on the letter of July 22, 1987, itself. The first sentence of that letter stated: "I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87." It is noted that R. Ex. 5, which Ms. McKinley testified was the only information she had on July 22, 1987, was an extensive report prepared by Nurse Patterson, and shows Michele McKinley in the "cc" list, from which it is inferred that Ms. Patterson routinely sent these medical evaluations to Ms. McKinley. In the year between August, 1986, and July, 1987, there is no evidence that Ms. Miller had failed to provide HRS with medical documentation concerning her injury as may have been required by HRS, or that HRS had not been satisfied with the reports received from Nurse Patterson and her predecessors. In particular, there is no evidence that during this twelve month period HRS had discussed with Ms. Miller any problem of receipt of medical documentation, or had occasion to warn her that it was her personal responsibility to provide medical documentation, and that her failure to do so would result in loss of her job. Such a warning, it is inferred, would have been appropriate if Nurse Patterson had failed to send medical documentation that had been previously demanded by HRS. In short, during the period from July, 1986, to July, 1987, it must be concluded that whatever system of medical documentation was then required by HRS, if any, was complied with satisfactorily. On July 28, 1986, Ms. Miller was warned by her supervisor that she had a personal responsibility to keep HRS informed concerning her medical condition. The warning on this date was prompted by the fact that HRS was then not receiving medical documentation that it needed. The relevance of this warning with respect to the period of June and July, 1987, is diminished for several reasons. First, this warning occurred a year before, and there is no evidence of any failure in the intervening 12 months by Ms. Miller to satisfy HRS's needs for medical documentation. Further, the July, 1986, incident occurred because Ms. Miller then did not have a rehabilitation nurse assigned to her case, and thus had no medical representative to send medical information to HRS for her. But more important, as discussed in the preceding paragraph, when Nurse Patterson and her predecessors were assigned to Ms. Miller, Ms. Miller relied upon them to send medical information. The system apparently worked, since there is no evidence of a dissatisfaction by HRS with medical documentation after July, 1986, until the letter of July 22, 1987. The medical documentation was still not received by Ms. McKinley on August 10, 1987. Ms. Miller did not report to work in the period from July 22, 1987, to August 10, 1987. On August 10, 1987, HRS by letter notified Ms. Miller that HRS concluded that Ms. Miller had abandoned her position. Ms. Miller did not learn that Ms. McKinley had not received the medical documentation until she received the letter of August 10, 1987. On August 18, 1987, Ms. Miller requested a formal administrative hearing concerning the conclusion that she had abandoned her position.
Recommendation It is therefore recommended that the Department of Administration enter its final order finding that the Petitioner, Tommie Miller, did not abandon her position with the Department of Health and Rehabilitative Services by being absent from her job for three consecutive workdays without authorized leave. DONE and RECOMMENDED this 17th day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988. APPENDIX To Recommended Order in Case No. 87-4136 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used designate the unnumbered paragraphs used by the Petitioner, in sequence. Findings of fact proposed by the Petitioner: Fourth sentence, there is no transcript, and the Hearing Officer's notes do not record the testimony that the medical excuse "indicated that the estimated Date of Return to Duty as unknown." The Hearing Officer has no independent memory of such testimony sufficient to conclude that this proposed finding of fact is true. The same is true with respect to the sentence: "Ms. Miller advised McKinley that she had been to see Dr. Richard P. Newman, M.D. on July 22, 1987." If the record reflected that Ms. Miller so testified, the Hearing Officer would make this finding of fact, since there was no reason to disbelieve Ms. Miller's testimony, and Ms. McKinley testified that she could not remember. Ms. Miller's testimony, as well as Ms. McKinley's testimony, appeared to be honest and straightforward, testifying to the truth both remembered at the time of testifying. The last sentence is not relevant. The first and third sentences are rejected since no one from Woods Rehabilitation Services testified. There is no evidence in the record that Ms. Patterson in writing told Ms. Miller that she advised Ms. McKinley of Ms. Miller's continued disability, and thus that portion of the sixth sentence is rejected. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Linoria Anthony AFSCME Council 79 345 South Magnolia Drive Suite F-21 Tallahassee, Florida 32301 James A. Sawyer, Jr., Esquire District VII Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida 32801 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact On April 18, 1988, Respondent, Jack Schenkel, was employed as one of fifteen fire fighter/emergency medical technicians, (EMT), with the Tarpon Springs Fire Department. He was scheduled to work on C shift which was to start at 7 am and extend for 24 hours until 7 am, April 19, 1988. In accordance with normal procedure, he then would have been off for 48 hours before his next shift. At approximately 1:30 am on April 18, Lt. Dennis L. Jennings, B shift supervisor, was on duty at the main fire station, when he received a phone call from the Respondent who indicated he had had a serious quarrel with his girl friend. Respondent indicated she was drunk and had "trashed" his house and he needed to stay at home to insure his possessions were not ruined. Respondent's actual request was for a personal day off, and when Mr. Jennings indicated there was no such thing for City employees, Respondent asked for a vacation day. It is and has been, for as long as Respondent has worked with TSFD, Department policy that vacation pay can only be authorized by personnel above the grade of Lieutenant, and while the actual paper request may, at times, be signed after the fact, the authorization must be received prior to departure so that the Department has time to rearrange schedules to accommodate the absence. When Mr. Jennings advised Respondent of this, though evidence indicates he was aware of it, Respondent indicated he had had no sleep and as a result, Mr. Jennings suggested that Respondent take a day of sick leave. However, Mr. Jennings also reminded Respondent that in accordance with an order issued in writing by the Fire Chief in 1979 to the effect that requests for sick leave must be called in between 6 and 6:30 am of the day in question, prior to the start of the duty day, he would have to call in during the prescribed time to arrange for his sick leave. Though a Lieutenant can take the information, he does not have the authority to approve the leave. As a matter of fact, however, bona fide sick leave, called in in conjunction with the Chief's order, at an appropriate time, is never disapproved. Respondent did not call in between 6 and 6:30 am on April 18 to request sick leave as he had been instructed to do by Lt. Jennings. Mr. Lopes, also a fire fighter, who was scheduled to work on the same shift, arrived at approximately 6:50 that morning. When he spoke to Lt. Jennings to ask where he would be assigned, Jennings advised him that Respondent had not come in and Lopes would fill his slot. Jennings told Lopes what Respondent had told him concerning the house and like matters. At that point, Lopes advised Mr. Jennings that Respondent did not own the house where he was living nor was he the prime tenant. To verify this, Jennings telephoned Respondent at home at approximately 7:05 am. When Respondent answered the phone and Jennings asked why he had not reported for duty, Respondent indicated that he intended to take a sick day. Jennings reminded him that he had not called in properly and told him that if he took the time off, there would be repercussions. According to Jennings, Respondent did not seem concerned about that possibility, replying something like, "Oh well, whatever." Lt. Jennings logged this call in and reported the situation to his relief, Lt. Parker, the incoming shift lieutenant. He also discussed the matter the following morning with Assistant Chief Carr and at Carr's request, submitted a written statement of what had happened. According to the City regulations, sick leave, such as was requested by Respondent here, can be used for situations where the employee himself is sick or disabled; where the employee has an appointment with a physician or dentist; where the employee in under medical quarantine; and as a result of a death in the immediate family of the employee, in which case, only four days leave are authorized. Girl friends are not included within the definition of "immediate family." In the opinion of Mr. Carr, sick leave is not authorized for circumstances such as were described by Respondent in his reasons for not coming in. Under the terms of the City regulation, taking a sick day for a reason not within the above-described categories, constitutes grounds for discipline. When Respondent came to work on April 21, 1988, Chief Carr called him in and asked for an explanation of why Respondent had failed to report for duty on April 18. In response, Respondent told him the same story he had related to Lt. Jennings. In the course of their conversation, Carr advised Respondent that he, Respondent, knew from prior incidents that sick leave was not appropriate under these circumstances. Respondent replied that his girl friend was sick and he was concerned about her safety, and showed Carr a copy of the police report regarding the incident on April 18 which reflected that she was highly intoxicated. Carr advised Respondent that the circumstances did not justify or authorize sick leave, and that action would be taken to terminate him from employment. With that, Respondent left. After Respondent departed, Chief Carr reviewed his personnel records in detail and saw the number of sick days Respondent had taken since he began work with the Department, as well as his prior disciplinary record. Respondent's personnel record shows that in the years he has been an employee of the City, he has taken 44 sick days accounting for 1,056 hours of sick leave. He then prepared a memorandum outlining it which he forwarded to the City personnel director who concluded that termination was appropriate. Respondent's personnel records reflect the following actions: Memorandum 7/82 from Respondent's shift leader indicating he arrived 2 hours 9 minutes late for work. When questioned, he related his alarm did not go off due to a possible power failure. Memorandum 8/19/82 from Respondent's supervisor reflecting he was again late for work by 1 hour 45 minutes. On 2/7/83, Respondent called in for sick leave at 6:40 am, 10 minutes after the close of the call-in window. Respondent was given a written reprimand. On 3/23/83 Respondent reported for work at 7:11 am without calling in. He indicated he had a flat tire. He was ordered to take a one day suspension without pay. On 5/2/83 Respondent was found asleep on duty with earphones on his head, a violation of rule 5, Section 4, Civil Service Rules and Regulations of the City of Tarpon Springs. For this offense, Respondent was given a warning. On October 27, 1983, Respondent was warned and counseled regarding the prior discrepancies in his job performance including the incident involving his sleeping on duty and his 17 incidents of sick leave within a relatively short period. On October 7, 1985, Respondent was again counseled on his excessive use of sick days which then amounted to 26 despite a counseling on the matter in December, 1984 and in October, 1983. On February 7, 1986, Respondent was disciplined for calling in at 6:48 am, on February 4, 1986, outside the window for sick leave call in. He was given a written warning and a one day suspension without pay. On August 7, 1987, Respondent called in sick at 6:17 am which was within the parameters of the Chief's order. As is the Department's policy, however, the Lieutenant on duty called back several minutes later to check on the employee, and found that Respondent was not sick. In fact, he had left to go to the store to pick up a part for the truck on which he was working. Since this constituted an abuse of sick leave, he was given a three shift suspension without pay. On January 28, 1988, Respondent was counseled for poor report writing and advised to take greater care in doing so. Even after two warnings to this effect, his reports were still incorrect and incomplete and he was given a written warning. Chief Carr is of the opinion that Respondent's improperly using sick days, and his failure to call in to request sick leave on time, demonstrates a disregard for the City's leave program and regulations. After the incident on April 18, Chief Carr had a report prepared analyzing Respondent's sick leave from the beginning of his employment with the Department in 1982. This report showed a pattern wherein Respondent would work one shift, do overtime and exchange days with other fire fighters so he could work two days in a row, and thereafter take several sick days in a row. It was apparent from this analysis that Respondent was manipulating the sick leave process for his own benefit and the testimony of Ms. Evans that he was moonlighting with Medic-One, an ambulance company in Pinellas County, on some of the days he had called in sick, tends to support this conclusion. Under the terms of the Personnel Rules of the City of Tarpon Springs, a fire fighter earns 15 days sick leave per year, which, if not used, can be carried over to succeeding years. Chief Carr has not had a sick leave analysis prepared on any other employee within the Department even though, to his understanding, there are others who have taken off an equivalent number of sick leave days. To the best of his understanding, however, the other employees utilized their sick leave in an appropriate manner. Respondent has been employed by the Department since May, 1982 as a paramedic. He admits the incident on April 18. He went to bed at approximately 10 pm on the evening of April 17, 1988 because he had to go to work the next morning. He was awakened around midnight by his girl friend who was hitting him, throwing things around, and screaming. She was very intoxicated. Respondent tried to avoid her and called the police who tried to quiet them both down. After the police left at about 12:30 am, Respondent went to sleep on the couch. At approximately 1:30 am she started fighting with him again and to avoid any further dispute, he took some of his things, left the apartment and made the first call to Lt. Jennings. In that conversation, according to Respondent, he advised Jennings he was tired and upset and needed the day off but to his recollection, did not request any specific type of time off. At the time in issue, Respondent admits to having both sick leave and vacation time adequate for the following day accrued. According to Respondent, Jennings did not say Respondent could not have the time off nor did he say how it would be recorded. He also did not tell him to call back or to do anything else in order to secure approval for his time off. However, in light of the fact that Respondent had obviously been aware of the requirement to call in for sick leave within a certain time window, and in light of the uncontroverted evidence that he failed to do so, whether Jennings advised him to call in or not is irrelevant. After talking to Lt. Jennings, Respondent intended to spend the night on his boat. However, he was too upset and was unable to sleep and he merely sat on the boat until just before dawn when he went back to his apartment. He did not sleep at all that night. Jennings called at about 6:30 am. During the conversation, Jennings talked to him about whose apartment it was and Respondent, tired and upset, told Jennings that since he'd already given him the time off, he could categorize it any way he wanted. Respondent had to find a place to stay and put his things in storage and he was quite tired. He did not feel he could go to work, and since Jennings did not direct him to come to work, he did not do so that day. Respondent reported to work the next shift he was scheduled for and was called in for an interview during which he was advised he was being terminated for abuse of sick leave. He attempted to tell the Chief he had not requested sick leave and explain what had happened, but Carr advised him he was nonetheless going to recommend Respondent be fired. Respondent does not dispute his prior disciplinary record but denies ever having called in on sick leave when he was not really sick in order to work someplace else. The testimony of Ms. Evans outlining several days on which Respondent worked for Medic-One when he appears to have called in on sick leave shows otherwise. Respondent would not object to a use of vacation time for the absence on April 18, 1988. It appears from the evidence that had Respondent not had so extensive a history of prior disciplinary actions, his absence here may well have been charged to vacation leave to protect him. Vacation time, when properly authorized, can be used for any purpose whatever. However, it must be properly approved in advance by someone higher than a Lieutenant. Chief Carr admits that had Respondent called and spoken to him that night, he might have been given vacation leave. However, in this case, no consideration was given to allowing Respondent to take vacation time for this absence because of his prior record. In making his decision to terminate the Respondent, Chief Carr considered not only the Respondent's disciplinary record, but also his commendations. Nonetheless, the good in Respondent's file did not justify overlooking the bad and his judgement in this case is not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Jack Schenkel, be discharged from employment with the Fire Department of the City of Tarpon Springs. RECOMMENDED this 10th day of October, 3988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 10th day of October, 1988. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 5. Accepted and incorporated herein. 6. Accepted and incorporated herein. 7. Accepted. 8. Accepted and incorporated herein. 9 - 10. Accepted and incorporated herein. 11. Accepted and incorporated herein. 12. Accepted. 13. Accepted and incorporated herein. Irrelevant. Accepted. 16 - 19. Accepted and incorporated herein. 20 - 21. Accepted and incorporated herein. 22. Accepted. 23 - 36. Accepted and incorporated herein in substance but not in detail. 37. Accepted. 38 - 39. Accepted and incorporated herein in substance. 40 - 42. Accepted and incorporated herein. For the Respondent: 1 - 2. Accepted and incorporated herein. 3 - 5. Accepted and incorporated herein. 6 - 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: NICHOLAS J. SARGENT, ESQUIRE SARGENT, REPKA, AND COVERT, P.A. 2963 GULF-TO-BAY BLVD., SUITE 320 CLEARWATER, FLORIDA 34619 ROBERT F. MCKEE, ESQUIRE 1724 EAST 7TH AVENUE TAMPA, FLORIDA 33605
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Petitioner was employed by Respondent as a clerical worker, a permanent career service position, at all times material hereto. Prior to October 3, 1988, Petitioner experienced back problems which prevented her attendance at work. Dr. Brian M. Mitteldorf, a chiropractic physician, treated Petitioner beginning September 25, 1988, and continuing through all times material hereto. On October 3, 1988, Theresa (Terry) Bartelmo, Petitioner's supervisor, advised Petitioner in writing that Petitioner would be out of sick leave and annual leave the following day. Mrs. Bartelmo enclosed two copies of the form used to request a leave of absence and advised Petitioner that it was necessary to fill in all blanks and to return the form to her by no later than October 10, 1988. Respondent does not authorize any type of leave for unspecified or unlimited duration. Ms. Bartelmo further advised Petitioner that "... If I do not hear from you by that date, (October 10,1988) then I will assume you wish to terminate your employment with the Department and will process the necessary documentation." On October 3, 1988, Petitioner's husband, Edmund DeSilva, met with Ms. Bartelmo. During the meeting, Ms. Bartelmo gave to Mr. DeSilva the letter she had written to Mrs. DeSilva, together with the forms for the leave of absence. The form for leave of absence was signed by Petitioner on October 3, 1988. Mr. DeSilva hand delivered the form to Ms. Bartelmo prior to the deadline of October 10 set by Ms. Bartelmo. This form was forwarded by Ms. Bartelmo to Martha (Marty) Anderson, Respondent's district personnel manager. Ms. Bartelmo recommended that the leave of absence be granted. Ms. Anderson approved the leave of absence on October 13, 1988. The leave of absence form submitted by Petitioner and approved by Respondent contained a tentative return-to-work date of November 23, 1988. On October 3, 1988, the date Petitioner signed the leave of absence form, it was uncertain when Petitioner would be able to return to work because of her medical condition. On or about October 18, 1988, Ms. Bartelmo telephoned Petitioner to check on her progress. After Petitioner told Ms. Bartelmo that she did not feel well enough to talk, Ms. Bartelmo asked Petitioner to call her when Petitioner felt better. Ms. Bartelmo did not talk with Petitioner again until after Petitioner's employment was terminated. Dr. Mitteldorf called Ms. Bartelmo on November 22, 1988, at approximately 3:30 p.m. Dr. Mitteldorf told Ms. Bartelmo during that telephone conversation that Petitioner was too ill to return to work. Ms. Bartelmo asked Dr. Mitteldorf for a letter stating his opinion as to when Petitioner could return to work. Dr. Mitteldorf's letter was dated December 13, 1988. During their telephone conversation on November 22, 1988, Ms. Bartelmo did not tell or indicate to Dr. Mitteldorf that their conversation was tantamount to an extension of Petitioner's leave of absence. Ms. Bartelmo did not tell Dr. Mitteldorf that she was mailing to him the forms Petitioner needed to submit to request an extension of her leave of absence. Ms. Bartelmo can recommend approval of a request for leave of absence, but she does not have the authority to grant the approval. Ms. Bartelmo did not tell Petitioner or anyone acting on Petitioner's behalf, that Petitioner had any form of authorized leave after November 22, 1988. Other than having Dr. Mitteldorf call Ms. Bartelmo, Petitioner made no effort to have her leave of absence extended. Petitioner's authorized leave of absence ended on November 22, 1988. Petitioner was absent without authorized leave of absence beginning November 23, 1988, and continuing for more than 3 consecutive work days. By certified mailing on December 2, 1988, Petitioner was advised that her career service position was terminated as of December 1, 1988. Petitioner had been given a copy of Respondent's Employee Handbook on December 16, 1986, which provides in part: After an unauthorized 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 policies. Petitioner's request for a formal hearing was timely filed.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service due to her unauthorized absence from employment for three consecutive workdays beginning November 23, 1988. DONE and ENTERED this 17th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 17, 18 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 9, 10, 15 and 16 of Petitioner's proposed findings of fact are unsupported by the evidence. COPIES FURNISHED: Larry D. Scott, Esquire Senior Attorney Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Colomba DeSilva 2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case is whether the Respondent terminated Petitioner's employment on the basis of a perceived disability, in violation of Section 760.10, Florida Statutes (2004),2 the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Seiden's Relevant Employment. Petitioner Jane Seiden is an individual who was employed by the Florida Department of Corrections at Broward Correctional Institute (hereinafter referred to as "BCI") from December 1988 until the end of March 1999 as a licensed practical nurse. From April 1, 1999, until October 7, 2001, Ms. Seiden continued to work at BCI, but was employed by a private business, Prison Health Services. On October 8, 2001, Respondent Wexford Health Sources, Inc. (hereinafter referred to as "Wexford") took over responsibility for providing medical services at BCI. Ms. Seiden became an employee of Wexford as of that date, after having received a letter dated June 20, 2001, signed by Wendy Mildner, as Wexford's Director of Human Resources/Risk Management, offering her employment with Wexford effective October 8th. Ms. Seiden accepted the offer of employment on June 25, 2001. Wexford is a provider of health care services to correctional facilities, including BCI. Throughout Ms. Seiden's employment at BCI, she received excellent work performance reviews. Wexford's Leave Policies. Wexford's policies concerning employee "Family and Medical Leave" at the time of Ms. Seiden's initial employment with Wexford were contained in the Wexford Health Sources, Inc. Employee Handbook (Respondent's Exhibit 9) (hereinafter referred to as the "Employee Handbook"). The Family and Medical Leave policy was, in relevant part, as follows: Employees who are eligible for Family and Medical Leave may take up to 12 weeks of unpaid, job protected leave. Employees are eligible if they have worked for at least one year, and for 1,256 hours over the previous 12 months. Reasons for taking unpaid leave are: . . . . ? for a serious health condition that makes the employee unable to perform the employee's job. . . . . The Wexford Employee Handbook, Revised 09/01/04 (Petitioner's Exhibit 9) (hereinafter referred to as the "Revised Employee Handbook"), established policies governing "Time Off" in Section 5. Pursuant to Policy 5.3, all employees are allowed to apply for a leave of absence for medical reasons. The period of the absence is limited, however, to 12 weeks, consistent with the Family and Medical Leave Act (hereinafter referred to as the "FMLA"), unless the employee is eligible for "income replacement benefits," for example for a short-term disability pursuant to Section 4.5, which provides the following: Wexford provides some income protection for employees who are unable to work for an extended period of time due to illness or injury through its Short-Term Disability Leave (STD) insurance program. You are eligible for STD benefits if: You Have completed one year of continuous service You work a minimum of 30 hours per week and are covered by health insurance. Eligible employees are entitled to short- term leave for up to 26 weeks in a rolling 12-month period. The rolling 12-month period is calculated by counting backwards from the date of the leave request. For example, if you request a leave in November, the rolling 12-month period is from November of the previous year to November of the current year. You will be required to provide a medical doctor's certificate to qualify for short- term disability leave. STD runs concurrent with the Family and Medical Leave Act (FMLA). Your weekly benefit is 50% of your weekly salary to a maximum of $300, whichever is less. . . . . Thus, Wexford policies, at the times relevant, allowed eligible employees to take up to 12 weeks of leave pursuant to the FMLA and 26 weeks of what Wexford termed "short-term disability" leave, the latter to run concurrently with the 12 weeks of family medical leave. Policy 5.3 describes Wexford's policy concerning "When Return to Work is Not Possible": If following 26 weeks of medical leave you remain unable to return to work your employment will be terminated. If you are able to work at a later point in time, you are welcome to reapply for employment. Your past history and work background will be taken into consideration for reemployment purposes. Consistent with this policy, Wexford does not grant extensions of the 26 week, short-term disability maximum absence. Also consistent with the policy, Wexford treats an employee as terminated at the end of the 26 week short-term disability absence if the employee does not return to work. Policies 5.3 and 5.4 provide the procedural requirements for applying for a medical leave of absence (forms to file, providing health care professional certifications of illness, etc.) and other procedures and the conditions for which FMLA leave will be granted. Of relevance to this matter, one of the conditions for which FMLA leave will be granted is: "a serious health condition that makes you unable to perform the essential functions of your job." Policy 5.4. Policy 5.7 of the Revised Employee Handbook is the established procedure for "Personal Leave of Absence - Unpaid." That Policy provides, in pertinent part" With the approval of management and the Vice President of Human Resources, you may be granted an unpaid personal leave for unusual, unavoidable situations requiring an absence from work. The unpaid personal leave is for a pre-determined period of time. Unpaid personal leaves of absence are awarded at the discretion of management and cannot be presumed or guaranteed. You must use all available PTO [personal time off] before requesting personal leave. . . . As reasonably interpreted by Wexford, the Unpaid Personal Leave of Absence policy is not used or intended for use as a method of taking off time in addition to the time off allowed by Wexford's policies governing FMLA leave and short- term disability leave. Ms. Seiden's Absence from Wexford. Ms. Seiden, who acknowledged receipt of, and responsibility for reading, the Employee Handbook at the time she was employed by Wexford, was diagnosed with kidney carcinoma in 2004. As a result of her illness she did not rest comfortably and, therefore, woke up during the night, she could not sit for long periods of time, and, although not fully developed in the record, she required hospitalization. As a result of her illness, Ms. Seiden was, due to a "serious health condition," "unable to perform the essential functions of [her] job." As a consequence, the last day that Ms. Seiden worked at BCI was April 26, 2004. Ms. Seiden was provided a Memorandum dated May 6, 2004, from Tara M. DeVenzio, Risk Management/Leave Compliance Assistant (hereinafter referred to as the "May 6th Memorandum"). The May 6th Memorandum, which Ms. Seiden read, states that Wexford had been notified that she was requesting a leave of absence and is "in need of Family Medical Leave (FML) and Short Term Disability (STD) forms." Those forms were included with the May 6th Memorandum. The May 6th Memorandum goes on to explain the procedures Ms. Seiden was required to follow in making her request for leave and the extent of leave available to her. The May 6th Memorandum also informed Ms. Seiden that, consistent with Wexford's written leave policies, the "[m]aximum amount of time allotted for Short Term Disability is 26-weeks on a rolling twelve (12) month period . . ." and that "[i]f you do not return when your leave has ended, you will be considered to have voluntarily terminated employment." Consistent with the May 6th Memorandum and the policies of the Employee Handbook, Ms. Seiden completed the forms required by Wexford to apply for FMLA and short-term disability leave to begin in April 2004, and end in October 2004. Ms. Seiden executed a Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Initial Leave Request") on May 10, 2004. (Petitioner's Exhibit 14). On the Initial Leave Request Ms. Seiden checked a box which indicated her reason for requesting leave was "Serious health condition that makes me, the employee, unable to perform the functions of my position." A space on the Initial Leave Request for "Date Leave of Absence to End" was left blank. Also provided to Wexford with the Initial Leave Request, was a Certification of Health Care Provider (hereinafter referred to as the "Certification"), as required by Wexford's leave policies. The Certification was from Nine J. Pearlmutter, M.D. Dr. Pearlmutter reported on the Certification that Ms. Seiden's "serious health condition" was a "renal mass" and that hospitalization was necessary. Dr. Pearlmutter also stated "yes at this time" in response to the following question on the Certification: If medical leave is required for the employee's absence from work because of the employee's own condition (including absences due to pregnancy or a chronic condition), is the employee unable to perform work of any kind? Ms. Seiden's Initial Leave Request was approved and she was provided a Memorandum dated May 25, 2004, from Ms. DeVenzio, memoralizing the approval. Ms. DeVenzio informed Ms. Seiden that her leave was approved "to commence on April 26, 2004." Ms. Seiden's 26-week period of leave began on April 26, 2004, ended October 25, 2004. Throughout this period, Ms. Seiden remained absent from BCI. On October 22, 2004, a Friday, Ms. Seiden telephoned Ellie Zeigler a Human Resources Generalist for Wexford, and spoke to her about the pending end of her approved leave. Ms. Seiden informed Ms. Zeigler that she wanted to request an extension of her leave, which Ms. Zeigler had not authority to grant or deny. Ms. Zeigler, who had not authority to approve or disapprove the request for an extension, told Ms. Seiden that she would send her forms, which she would have to file in order to request additional leave. Ms. Zeigler also explained to Ms. Seiden that the maximum leave available to her had been exhausted, and that, because her physician had not released her for return to work, her employment with Wexford would be considered terminated if she did not return to work the following Monday. Ms. Zeigler also told Ms. Seiden that a letter to that effect would be sent to her. Ms. Zeigler, as promised, sent Ms. Seiden a Wexford Family / Medical Leave of Absence Request. On Wednesday, October 27, 2004, two days after Ms. Zeigler's approved absence ended, Ms. Seiden executed the Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Second Leave Request") which Ms. Zeigler provided to her. Again, she checked as the "Reason for Leave" the box indicating "Serious health condition that makes me, the employee, unable to perform the functions of my position" and the "Date Leave of Absence to End" space was left blank. A second Certification of Health Care Provider form (hereinafter referred to as the "Second Certification"), executed by Dr. Pearlmutter was provided with the Second Leave Request. Dr. Pearlmutter listed, among other things, carcinoma of the kidney as Ms. Seiden's illness. While Dr. Pearlmutter indicates a "2 month" duration for one of the listed conditions, she did not indicate when Ms. Seiden would be able to return to work at the end of two months. Again, Dr. Pearlmutter answered "yes" to the question quoted in Finding of fact 18. The Second Leave Request, which was sent by certified mail on Thursday, October 28, 2004, three days after the end of Ms. Seiden's approved leave, was received by Wexford on Monday, November 1, 2004, seven days after the end of her approved leave. The Termination of Ms. Seiden's Employment. On October 25, 2004, the last day of Ms. Seiden's approved absence, Arthur Victor, Wexford's Human Resources Manager, and Ms. Zeigler exchanged e-mails concerning Ms. Seiden. In response to an inquiry from Mr. Victor, Ms. Zeigler informed Mr. Victor that October 25, 2004, was the last day of Ms. Seiden's approved leave. In response to Ms. Zeigler's information, Mr. Victor wrote "[t]hen there is no extension. Six months is up 10/30/04. You need to talk to Ron Miller re. termination." This decision was consistent with Wexford’s written policies and was based upon Ms. Seiden's failure to return to work on October 25, 2004. Given Mr. Victor's statement that "there is no extension," it is found that Mr. Victor had been informed that Ms. Seiden intended to request an extension of her approved absence. It is also found that Wexford was aware of the reason for Ms. Seiden's absence: kidney cancer. Finally, it is found that, by terminating Ms. Seiden's employment, Wexford denied the requested extension. After receiving Mr. Victor's e-mail indicating that Ms. Seiden would be terminated, Ms. Zeigler wrote to Ron Miler and Judy Choate, Ms. Seiden's supervisor, and informed them of the following: I received a call from Jane last friday [sic] requesting an extension for her fmla. Jane's 26 weeks for her std/fmla has expired as of today (10/25/04). I just spoke with Jane and inform [sic] her that her Dr. has not released her for full duty and that she was exhausted all of her authorized fmla/std leave and that Wexford considers her to have resigned from her position. I told Jane that Judy will be sending her a letter confirming her of the above. To Ms. Choate, Ms. Zeigler continued: The letter should be sent from you. Attached you will find a copy of the letter that Art has drafted for your [sic] to send to Jane regarding her std/fmla. . . . . Also, please complete the "Termination Processing From" and forward it to the Pittsburgh office so I can term her out of the system. The draft termination letter provided to Ms. Choate and dated October 26, 2004, was signed by Ms. Choate and sent to Ms. Seiden. The letter (hereinafter referred to as the "Termination Letter") states, in part: As you are aware, you have exhausted all authorized Family and Medical/Short Term Disability leave. You were to return to work on October 25, 2004. Since you have not returned, Wexford Health Sources, Inc. considers you to have resigned your position as a Licensed practical [sic] Nurse, effective October 25, 2004. If you are in disagreement with this letter, please contact me immediately but no later than 4:00pm, on 10/28/02004 at If it is determined that there were extenuating circumstances for the absence and failure to notify, you may be considered for reinstatement. . . . . Ms. Seiden received the Termination Letter on November 3, 2004. She did not contact Ms. Choate about the matter. Although she had been informed on October 22, 2004, that she would be terminated by Wexford during her telephone conversation with Ms. Zeigler, November 3, 2004, constitutes the first official notice of Wexford's adverse action which Ms. Seiden received. The effective date of Ms. Seiden's termination was October 25, 2004. The Reason for Ms. Seiden's Termination. Ms. Seiden was terminated because, consistent with written Wexford policies which Ms. Seiden had been informed of on more than one occasion, Ms. Seiden had exhausted the maximum family medical leave and short-term disability leave she was authorized to take. Having used the maximum authorized medical leave, Ms. Seiden was still unable to perform any of the functions and duties required of her position. Due to her illness, she was simply unable to perform any work at all during the period relevant to this case, a fact Wexford was aware of. While she testified at hearing that she had been told by her physician that she would be able to return to work in January 2005, that testimony constitutes hearsay upon which a finding of fact will not be made. More significantly, Wexford was never informed by Ms. Seiden or her physician that she would be able to work. Wexford's policies gave Ms. Seiden leave in excess of the 12 weeks required by the FMLA. Wexford was not required to do more. Ms. Seiden's Claim of Discrimination. Ms. Seiden filed her Employment Complaint of Discrimination with the FCHR on November 30, 2005, or 392 days after being informed that she had been terminated and 401 days after her actual October 25, 2004, termination date. After a Determination: No Cause was issued by the FCHR, Ms. Seiden filed a Petition for Relief in which she alleged that Wexford had "violated the Florida Civil Rights Act of 1992 by terminating [her] based upon a perceived disability." No allegation of failure to provide an accommodation for her disability was alleged in the Petition. Summary. The evidence proved that Ms. Seiden failed to file her complaint of discrimination with the FCHR within 365 days of the discriminatory act. She offered no explanation as to why she did not do so. Ms. Seiden failed to establish a prima facie case of unlawful employment discrimination. While she did prove that she suffered from kidney cancer and that, as a result of her illness she was unable to perform the duties of her position, which may constitute a disability, she ultimately failed to prove that she was a "qualified individual" with or without an accommodation. From April 2004 through October 22, 2004, when she orally informed Wexford that she desired an extension of leave, her termination from employment on October 25, 2004, and on November 1, 2004, when her formal request for an extension of leave was received by Wexford, Ms. Seiden, along with her physician, reported to Wexford that she was unable to carry out her employment duties. Ms. Seiden also failed to prove that she was terminated because of her illness, on the basis of a perceived disability. Finally, Wexford proved a non-pretextual, non- discriminatory reason for terminating Ms. Seiden's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Jane Seiden. DONE AND ENTERED this 18th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2007.
The Issue The issues raised in this case are those set forth in a petition of May 18, 1987, in which the Petitioner, Richard Herring, challenged former Rule 22SM- 3.007, Florida Administrative Code, which became effective on May 29, 1986, and the amendment to that rule which had an effective date of February 1, 1987. In particular, Petitioner believes that the rule in its prior and existing forms exceeded the authority of the enabling legislation which is stated to underlie the promulgation. Petitioner contends that the rule in the prior and present form is arbitrary and capricious. Petitioner claims that the rule in its terms establishes penalties not authorized by the legislature. Petitioner believes that material changes were made to the rule following public hearing which were not supported or noticed or required by statute. Finally, Petitioner argues that the economic impact statements associated with the prior version of the rule and the February 1, 1987, version are not adequate, in that they do not apprise the Petitioner or others similarly situated of the negative implications of the rule. Exhibits and witnesses Richard Herring testified in his own behalf and called as witnesses Pam Hill and Vivian Pyle. In furtherance of his claims he submitted Petitioner's Exhibits 1-29, 32-39 and 42-45 which were received into evidence. Respondent offered Don Bradley as a witness in defense of this action.
Findings Of Fact On July 30, 1984, Richard Herring became a member of the Senior Management Service Personnel System within the State of Florida. He was recognized as a member of Senior Management from that day until March 2, 1987, the date he voluntarily left that system. During that time he served as Deputy Director of Developmental Services within the State of Florida, Department of Health and Rehabilitative Services (HRS). In confirmation of his elevation to the status of Senior Management employee, correspondence of August 3, 1984, was sent to the Petitioner over signature of Vivian Pyle, Central Personnel Officer for HRS. A copy of that letter may be found as Petitioner's Exhibit 2 admitted into evidence. As had been explained in his recruitment, the letter reminded the Petitioner that any future annual leave which he accumulated in excess of 480 hours effective as of the anniversary date of his employment would be converted to sick leave on an hour for hour basis. It further stated that at the point of separation from Senior Management Service, Herring, as an appointee to that system, would be paid for unused annual leave, not to exceed 480 hours. The rule provision pertaining to annual leave in effect at the time of Petitioner's acceptance into Senior Management Service was Rule 22SM-1.12(3), Florida Administrative Code. That rule became effective on March 16, 1981. A copy of the rule may be found as Petitioner's Exhibit 1 admitted into evidence. The rule in the aforementioned subpart stated: (3) A Senior Management appointee shall be paid for unused annual leave upon separation, not to exceed 480 hours; all other Senior Management benefits shall cease. Payment for sick leave may be made when permitted by Section 110.122, Florida Statutes. The Department of Administration determined to revise the existing rules pertaining to Senior Management Service. To this end, on February 21, 1986, Respondent gave notice of its proposed rule changes. This notification was given in the Florida Administrative Weekly. A copy of the notice, together with the full text of the proposed rule as contemplated in the notice, may be found as Petitioner's Exhibits 4 and 5 submitted into evidence. The notification states that the change calls for the repeal of existing Rules 22SM- 1.01 through 22SM-1.14, Florida Administrative Code, and the contemporaneous adoption of Rules 22SM-3.001 through 3.011, Florida Administrative Code. This meant that the Respondent had in mind the repeal of the aforementioned Rule 22SM-1.12(3), Florida Administrative Code. The stated purpose of these changes was ". . . to provide a more clearly defined rule structure for the Senior Management Service and to allow for 1985 statutory revisions." The statement of economic impact of the rule was that it would be limited only to the administrative cost of promulgation of the new rules. As noticed, the proposed Rule 22SM-3.007 at Section (6) stated: Upon appointment to a Senior Management position of a person moving from a position in state government outside the Senior Management Service, any leave accrued and unused by the person in the prior position shall be subject to the following: Special compensatory leave credits shall be paid for in cash prior to appointment to the Senior Management Service. Regular compensatory leave shall not be transferred into the Senior Management Service. Annual leave shall be retained and be credited to the employee's account for use by the employee with approval of the agency head pursuant to Section 22SM-3.007(3) or paid for on termination from state government. Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from the Senior Management Service. Sick leave not paid for shall be retained and be used or be subject to terminal payment in accordance with Subsection (4) above. Subsection (6)(c) to proposed Rule 22SM-3.007 as it speaks to the payment previously earned for annual leave upon termination from state government pertains to new employees who would be appointed to Senior Management positions following the effective date of the rule. It does not contemplate the question of payment of annual leave for those persons who had been appointed to Senior Management Service prior to the effective date of the proposed rule. In fact, the overall Chapter 22SM-3 as proposed did not speak to the question of payment of unused annual leave accrued by those existing employees when they left Senior Management. Conversely, Subsection (4) to this proposed rule spoke to the matter of payment for sick leave for employees who were in Senior Management before the effective date of the proposal, a counterpart to Subsection (6)(d) dealing with employees who would come after the effective date of the proposed rule. The statement of the summary of the rule changes contemplated by the notice of February 21, 1986, may be found in a copy of the summary, Petitioner's Exhibit 6 admitted into evidence. In that summary it indicated: . . . The rule sets certain requirements agencies must conform to in the areas of appointments, performance evaluations, attendance and leave for employees appointed to positions in the Service. Agencies are required to maintain personnel files and records which shall be subject to post audit review by the Department of Administration. Under the statement of economic impact in the summary dealing with cost or benefits to persons directly affected, it was stated: It is estimated that the leave benefits will benefit Senior Management Service employees, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. . . . A public hearing was held on the proposed Chapter 22SM-3. The hearing date was March 7, 1986. In the summary of the hearing and changes, a copy of which may be found as part of Petitioner's Exhibit 7 admitted into evidence, it is noted that the State of Florida, Department of Insurance, recommended that the payment be made for excess annual leave when an employee leaves Senior Management Service and moves to another service. That change was not adopted. The executive summary of the proposed Rules 22SM-3, found as part of Petitioner's Exhibit 7 admitted into evidence identified the fact of the replacement of Chapter 22SM-1 with proposed Chapter 22SM-3 and the fact that any changes to the noticed version of the rule of February 21, 1986, were said to represent only minor technical changes recommended by the Joint Administrative Procedures Committee. It was stated that no changes were made as a result of the public hearing held on March 7, 1986. This is taken to mean that there were no substantive changes made in that the summary of the public hearing and changes did identify certain modifications to the proposal that were recommended and adopted following the public hearing session. None of those changes that resulted from the public hearing spoke to proposed Rule 22SM-3.007. On May 6, 1986, Glenn W. Robertson, Jr., Secretary to the Administration Commission, wrote to Gilda H. Lambert, Secretary, Department of Administration, to advise her that on that date the Administration Commission had approved with amendment the request to repeal existing Rules 22SM-1.01 through 1.14, Florida Administrative Code, and to adopt proposed Rules 22SM- 3.001 through 3.011. A copy of that correspondence may be found as Petitioner's Exhibit 8, together with the statement of the executive summary identifying the proposed permanent rule amendments which were contemplated by the Administration Commission. Within the statement of amendments promoted by the Administration Commission was an amendment to proposed Rule 22SM- 3.007(6)(c), which stated: (6)(c) Annual leave shall be retained and credited to the employee's account for use by the employee with approval of the agency head pursuant to Section 22SM-3.007 or if the employee is transferring to Career Service, up to 240 hours of Annual leave will be transferred. Any Annual leave balance after the 240 transfer will be paid for except that the amount accrued (sic) since the employee's last anniversary will be paid for on a prorated basis in accordance with the appropriate accrual rate for Career Service. Annual leave will be paid for on termination from state government. Termination from state government --. This change to proposed Rule 22SM-3.007(6)(c) was at the instigation of the Commissioner of Agriculture in the language. . . . or if the employee is transferring to Career Service, up to 240 hours of Annual leave will be transferred. Any Annual leave balance after the 240 transfer will be paid for except that the amount accrued (sic) since the employee's last anniversary will be paid for on a prorated basis in accordance Service. Annual leave will be paid for on termination from state government. This was not the choice of the Department of Administration in terms of the substance or placement of this language. Ultimately, the language set forth in the amendments to the proposed Rule 22SM-3.007(6)(c) as found in Petitioner's Exhibit 8 made their way into the final version of the rule. The language prompted by the Agriculture Commissioner had not been contemplated by the language noticed when the rule was proposed on February 21, 1986, nor was it the product of public comment in the public hearing of March 6, 1986, or based upon remarks received from the APA committee or material received by the proposing agency within 21 days of notice of the proposed rule. The language was never noticed in the Florida Administrative Weekly. In May 1986, upon an unspecified date, certification was given from the Department of Administration to the Secretary of State confirming the adoption of Rules 22SM-3.001 through 22SM-3.011, Florida Administrative Code. The effective date of this adoption was May 29, 1986. A copy of that certification to the Department of State may be found as Petitioner's Exhibit 9. A copy of the summary of changes by the Administration Commission in its May 6, 1986 meeting setting out the suggested language of the Agriculture Commissioner on the topic of Rule 22SM-3.007(6)(c), Florida Administrative Code, may be found in Petitioner's Exhibit 10. This item, as well as the language from Subsection (6)(c) and which was sent to the Secretary of State's office and became the final version of that rule subsection, included an additional sentence which stated, "Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from Senior Management Service," and which had not been set out completely in the executive summary sent to Secretary Lambert on May 6, 1986, found as Petitioner's Exhibit 8 admitted into evidence. This most recently quoted language is, however, the same language as found in the last sentence of Subsection (6)(c) to the notice of that matter given on February 21, 1986. In the final analysis, the changes suggested by the Commissioner of Agriculture were a part of the Administration Commission's deliberations. The final summary of the rules amendments which was filed with the Secretary of State on May 9, 1986, did not depart from the initial summary of the rules amendments pertaining to the replacement of Rules 22SM-1.01 through 22SM-1.14 with Rules 22SM-3.001 through 22SM-3.011. The statement of economic impact remained the same as well. A copy of the summary of the rules amendments and the final statement of economic impact may be found as Petitioner's Exhibit 11 admitted into evidence. The final version of proposed Rule 22SM-3.007(6)(c), which was enacted, was no more specific on the subject of payment of annual leave credits upon termination of an employee who had been appointed to Senior Management Service prior to the effective date of the rule than was the version of that provision noticed on February 21, 1986. When Subsection (6)(c) is read in the context of the overall Section (6), the language describes that experience pertaining to persons appointed to Senior Management following the effective date of the rule and their leave credits brought with them. It does not describe those who were already employees in the Senior Management system before the effective date of the rule and their annual leave credits or annual leave credits earned by new employees upon admission to the Senior Management Service. This circumstance, taken together with the repeal of the previous Rule 22SM- 1.12(3), Florida Administrative Code, means that the question of the payment for annual leave hours upon the termination from Senior Management Service after May 29, 1986, for those who had been appointed to Senior Management Service before that date was unresolved by rules of the Department of Administration beyond May 29, 1986, as was the matter of how to deal with hours earned by the new members who came into the Senior Management Service. This circumstance would remain until the passage of an amendment to Rule 22SM-3.007, Florida Administrative Code, effective February 1, 1987. Petitioner challenged Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, by petition of May 18, 1987. In that same petition, he challenged Rule 22SM-3.007, Florida Administrative Code, effective February 1, 1987. All accumulated annual leave for which Petitioner claims entitlement to payment had been accumulated prior to February 1, 1987. As forecast, Respondent determined to amend certain rules within Chapter 22SM-3, Florida Administrative Code, to include Rule 22SM-3.007, Florida Administrative Code. To this end, on October 17, 1986, Respondent gave notice in the Florida Administrative Weekly of its intention. The summary given by the notice of October 17, 1986, stated: The rule amendments provide for clarification of the designation of positions to be included in the Senior Management Service, provide for the transfer of leave between services, provide for the accrual of 240 hours of annual leave and 120 hours of sick leave each year, and provide for membership in the Senior Management Service class of the Florida Retirement System. The comments on economic impact found in the notice were to the effect: The executive agencies will be required to expend approximately $11,628 in the aggregate to implement the provisions of this rule. The overall purpose and effect of the rules changes was explained as being implementation of provisions made by the 1986 Legislature, as to Part IV, Chapter 110, Florida Statutes. See Petitioner's Exhibit 13/14 admitted into evidence. In this amendment to Rule 22SM-3.007, Section (6) in existing language becomes Section (10) in the new language. Subsection (6)(c) in the existing language is modified at Subsection (10)(c) by referring to employees as members and deleting the language beginning with " . . or if the employee is transferring . . ." to the end of that Subsection (6)(c). There are added Sections (5) and (6) in the proposed rule which address the circumstance of annual leave credit for persons who were in Senior Management Service at the point the prospective effective date of the rule noticed on October 17, 1986, as well as annual leave credits earned by employees who became members after the effective date of the amendment to the rule. This is a new addition not found in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, which was silent on the treatment of annual leave credits for persons who had been in Senior Management Service before May 29, 1986, and the leave credits yet to be earned by those who became members after that date. For Petitioner's purposes, in this challenge, the proposal to add Sections (5) and (6) was tacit recognition of the fact that in the provisions set forth in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, the question of payment for annual leave upon termination of employees who had been hired before the effective date of that rule was not addressed. The language of the proposed amendment to Rule 22SM- 3.007 at Section as noticed on October 17, 1986, indicated: Upon transfer of a Senior Management Service member to a position in state government outside the Senior Management Service, annual leave credits shall be retained and shall be calculated and credit as follows: All annual leave credits accrued on the member's last anniversary date shall be prorated at the rate of 20 hours monthly or 9.230 hours biweekly for each period worked thereafter. If the member is transferring to the Career Service, up to 240 hours of annual leave will be transferred and any annual leave balance in excess of 240 hours shall be paid for in cash. Subsection (5)(b) in the proposed amendment spoke to the transfer of 240 if the employee transferred to Career Service, and payment for excess balance over 240 hours earned while Senior Management employees for all that class of employees regardless of their point of employment in the same way Subsection (6)(c) of the May 29, 1986, rule spoke to those matters of payment for annual leave brought with them related to employees who would become members of the Senior Management Service on May 29, 1986, and subsequently. A second category of payment for annual leave was described in the proposed rule noticed on October 17, 1986, Rule 22SM-3.007(6), which stated: Annual leave will be paid for upon termination from state government. Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from the Senior Management Service. This statement pertained to those employees who were members of the Senior Management Service prior to the enactment of the proposed rule and those who would become members and earn credits after the enactment. None of the provisions in the proposed amendments advertised on October 17, 1986, dealt specifically with transfer of or payment for annual leave credits for persons who were not leaving state government, not going to Career Service, but leaving the Senior Management Service to go into other positions within state government over which the Department of Administration had no control as to personnel matters. Effective March 3, 1987, Petitioner transferred to such an organization, namely, the State Legislature. The proposed amendment to Rule 22SM-3.007 noticed October 17, 1986, at Section (3) increased the credit for annual leave and sick leave from 176 hours to 240 hours and 104 hours to 120 hours, respectively. It is couched in terms of giving these benefits upon the appointment and on the anniversary date of appointment to the Senior Management Service. At the commencement of the steps taken to amend Rule 22SM-3.007, Florida Administrative Code, the overall summary of the amendments spoke in terms of the provision for transfer of leave between the personnel services, and the increase in accrued leave to 240 hours of annual leave and 120 hours of sick leave and the provision of membership in the Senior Management Service class of the Florida Retirement System. The statement of the economic impact indicated that the executive agencies would be required to expend approximately $11,628 in the aggregate to implement this rule. The statement of costs or benefits to persons directly affected was said to be: It is estimated that the leave benefits will benefit Senior Management Service members, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. This comprehensive statement of the summary of rules and the economic impact statement may be found as Petitioner's Exhibit 15 admitted into evidence. A public hearing was scheduled for November 7, 1986, and was held in the Larson Building auditorium, Tallahassee, Florida. This was the sole public hearing held to consider the amendments contemplated by the October 17, 1986, notice. By letter of November 5, 1986, a copy of which may be found as Petitioner's Exhibit 16 admitted into evidence, James J. Parry, Director of the Office of Human Resources, State University System of Florida, made mention of his concerns about the proposed amendments. In particular, he was concerned that the higher annual leave and sick leave credits provided in the Senior Management Service and the ability to convert those to sick leave presented potential liability to the State University System when hiring individuals who had been members of the Senior Management Service. He urged change in the language of proposed Rule 22SM-3.007(5) which would make it clear that the annual leave credits had to be transferred from Senior Management Service to the receiving employer according to that governmental body's personnel plan, if unaffiliated with the Department of Administration. Furthermore, he suggested that if the annual leave had been converted to sick leave while the employee was with Senior Management Service, upon the affiliation of the employee with the State University System there was a potential of passing along the cost of payment of that unused sick leave upon the termination of that employee's affiliation with the State University System or other governmental employer. He pointed out his belief that the economic impact statement in the proposed rule amendment only spoke to the increase in annual leave credit when in fact there would be an increase in sick leave credit as well. This references the economic impact statement at paragraph 1 to Petitioner's Exhibit 15 where mention is made of the cost incurred to an agency for annual leave accrual rates without mention of concomitant increases in cost for sick leave credits. Parry, by his November 5, 1986, remarks set out in the Petitioner's Exhibit 16, did not reference any specific concern about whether the agency for whom a Senior Manager had worked prior to transfer to the State University System would be liable for payment of annual leave hours accrued prior to transfer. Don Bradley, Chief of the Bureau of Classification and Pay, Department of Administration, received the November 5, 1986, Parry letter on November 6, 1986, a day before the public hearing. (Bradley is the principal author of the version of Rule 22SM-3.007, Florida Administrative Code, under consideration.) That letter was introduced into the record of the public hearing. Bradley recalls that Parry's concern as expressed in the letter and at the point of the public hearing revolved around the fact that the State University System would not allow accumulation of annual leave credit as high in total hours as was allowed by the Senior Management Service. Parry, according to Bradley, wanted to see a revision to the rule amendment which specifically stated that any transferred hours from Senior Management Service to the State University System be in accordance with the personnel rules on annual leave credits utilized by the State University System. Parry is not reported to have expressed an interest at the public hearing on the question of the employing agency of an employee within the Senior Management Service needing to pay for unused annual leave credits prior to transfer of the employee into the State University System, per se. Bradley recalls that there was a related discussion on who would pay for annual leave the State University System did not accept in an effort by Parry to clarify that his organization would not be responsible for payment. The proposed amendments to existing Rule 22SM-3.007 were presented to the Administration Commission. This was done by transmittal to the Office of Planning and Budget of the Governor's Office and from there to the Cabinet Aides to members of the Administration Commission. This submission occurred a week prior to the Cabinet meeting at which the Administration Commission considered the question of the amendments. As set out in Petitioner's Exhibit 17 containing a memorandum from the Department of Administration Secretary, Gilda H. Lambert, dated November 25, 1986, reference is made to the Cabinet Aides' consideration of proposed amendments to 22SM-3.007, described in that document as 22SM-1.007 and changes brought about in this session. That meeting of Cabinet Aides took place on the morning of November 25, 1986, causing certain revisions to be made to the proposed rules on Senior Management Service. It is unclear how the notice was given of the Cabinet Aides' meeting at which point Mr. Bradley and Mr. Parry discussed changes to the proposed amendment to Rule 22SM-3.007, Florida Administrative Code. In any event, it does not appear that Petitioner would have been apprised of this session. Among those items addressed by Secretary Lambert was a description of what was referred to there as 22SM-1.007 on attendance and leave at Section (5) on page 8 wherein she says that the revision was made to: Clarify that upon transfer to a position in state government outside the Senior Management Service, unused annual leave credits shall not be paid for and may be transferred subject to the rules governing the system into which the member is transferring. Within Petitioner's Exhibit 17 is the exact nature of Section (5) with the revision being employed. The new language is underlined in this rendition of the version of Section (5) after the Cabinet Aides' meeting. Upon transfer of a Senior Management Service member to a position in state government outside the Senior Management Service, annual leave credits shall not be paid for and may be transferred subject to the rules governing the system into which the member is transferring. All annual leave credits accrued on the member's last anniversary date shall be prorated at the rate of 20 hours monthly or 9.230 hours biweekly for each pay period or portion thereof, worked subsequent to the member's last anniversary date. As can be seen by this action, Subsection (5)(b) was deleted. These changes were not noticed by publication in the Florida Administrative Weekly. Mr. Bradley describes the underlined changes alluded to in the preceding paragraph as a product of ongoing negotiations between him and Mr. Parry which took place at the point of the Cabinet Aides' meeting dealing with the proposed amendment to Rule 22SM-3.007(5), Florida Administrative Code. In the response to the Parry concerns, Mr. Bradley did not feel that it was necessary to change the proposed language put out in the notice of October 17, 1986, pertaining to Rule 22SM-3.007(5) dealing with transfer of hours to a personnel system not administered by the Department of Administration, in that the receiving employers outside DOA controls were not obligated to receive annual credits above what was called for in their personnel systems. Nonetheless, he acquiesced in the inclusion of language in Section (5) arrived at in the Cabinet Aides meeting which made this point abundantly clear. It is that aspect of the change dealing with the transfer of annual leave credit subject to the rules of the governing system into which the member would be transferring that is seen to address Parry's concerns. The portion of the changes that deal with the unwillingness to pay for annual leave credits unless the employee is leaving Senior Management Service to go out of state government as contemplated by Section (6) may be seen as a related matter, in that the nonpayment of annual leave could cause the entire amount of those credits to be transferred over to the State University System or the Legislature to which Petitioner made his transfer. Nevertheless, Parry's emphasis was to make certain that the State University System not have to accept more annual leave credit than it would allow its employees to carry at any given point in time. The fact of nonpayment increases the potential liability for payment of unused annual leave on the part of a receiving agency. This reality does not comport with Parry's contribution before and at the point of public hearing in protecting his organization. His secondary concern expressed at the public hearing about not paying for excess annual leave his agency would not accept coincides with the idea that he wished to minimize the financial exposure of the State University System. This auxiliary position is not tantamount to advocacy which called for the abolishment of all payment for annual leave upon transfer. Finally, this last expression on the topic of payment for unused annual leave left at point of transfer does not give rise to the notion that it was sufficiently debated to notice interested parties that a rule would be enacted that disallowed payment for annual leave upon transfer to any state agency from Senior Management Service. The changes that came about in Section (5) by the Bradley/Parry discussion at the Cabinet Aides' meeting brought forth the additional penalty to the employee in Senior Management Service that annual leave credit would not be paid for in the future. This expression was contrary to the repealed Rule 22SM- 1.12(3), Florida Administrative Code, in effect prior to May 29, 1986, which allowed payment for annual leave upon any transfer, overturned the silence on this point in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, and set aside the less restrictive statement on payment for annual leave in Section (5) as advertised on October 17, 1986. On balance, the addition of the language following the Cabinet Aides' meeting in which it is stated that annual leave credits shall not be paid for in transfer to other state government employment is seen to be a product of the thinking of the Department of Administration, not sufficiently foreseen by actions in the public hearing on November 7, 1986, not duly noticed in the Florida Administrative Weekly and not based upon remarks received from the APA committee or material received by the proposing agency within 21 days of the October 17, 1986 notice. The summary of the hearing on November 7, 1986, pertaining to the proposed amendment to the rule describes the participation on the question of proposed Rule 22SM-3.007 of other agencies in state government, as well as Mr. Parry from the State University System. A copy of that summary of hearing and changes may be found as Petitioner's Exhibit 20 admitted into evidence. The statement of changes found within that exhibit included the elimination of the payment of annual leave in excess of 240 hours if an employee transfers to another position in state government outside of the Selected Exempt Service. This is taken to mean transfer of a Senior Management Service employee to Career Service as described in Subsection (5)(c) noticed on October 17, 1986. It does not speak to the absolute prohibition of payment for annual leave hours accrued prior to transfer from Senior Management Service to any receiving governmental agency. On December 30, 1986, the amendments to Rule 22SM- 3.007 were filed with the Secretary of State. A copy of that filing may be found as Petitioner's Exhibit 19 admitted into evidence. Those amendments to Rule 22SM-3.007, to include the changes at Section (5) disallowing payment for annual leave credits upon transfer to another state government agency from Senior Management Service are included. In accordance with the final language of the rule, there is set forth a summary of the rule amendments which may be found as part of Petitioner's Exhibit 21. It states: The rule amendments provide for clarification of the designation of positions to be included in the Senior Management Service, provide for the transfer of leave between services, provide for the accrual of 240 hours of annual leave and 120 hours of sick leave each year, and provide for membership in the Senior Management Service class of the Florida Retirement System. The statement of justification for the amendments was that the changes were made to implement 1986 legislation of Part IV, Chapter 110, Florida Statutes. The economic impact statement found within Petitioner's Exhibit 21 said that the aggregate cost to the executive agencies was $11,628. It stated that the number of position descriptions that were involved would be approximately four hundred. On January 31, 1987, there were 1370+ positions in Senior Management Service before the new rule provisions were placed in effect. On February 1, 1987, as a result of the implementation of the 1986 amendment to Chapter 110, Florida Statutes, there were left approximately three hundred fifty Senior Managers. Within the economic impact statement as finally established for the amendments effective February 1, 1987, it is said: It is estimated that the leave benefits will benefit Senior Management Service members, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. Mr. Bradley, author of Chapter 22SM-3, Florida Administrative Code, effective May 29, 1986, and the amendment to those provisions as printed out on February 1, 1987, said that the Department of Administration had in mind the creation of a Senior Management Service system to try to retain Senior Managers. This included the idea of the discontinuation of payment to Senior Managers except under circumstances where they left state government. He had in mind limiting the idea of automatic payment when a Senior Management Service employee went to the Legislature or the State University System or the court system. To his way of thinking, this would encourage the senior management to remain with the employing agency. As described before, his desired outcome is not achieved until such point as the last version of Rule 22SM-3.007(5), Florida Administrative Code, effective February 1, 1987, came into effect. This was an arrangement without due notice and without regard for the hardship created by the imposition of the nonpayment for transfer rule, unless it can be said that the increase in annual leave credit and sick leave credit contemplated by the February 1, 1987, version of Rule 22SM-3.007, Florida Administrative Code, is seen as an offset. It cannot be so regarded for persons such as the Petitioner who gained very little profit from the increase in annual leave and sick leave hours while losing a substantial number of annual leave credits when he left HRS to go to the Legislature. Petitioner had been made aware sometime in December 1986, of the language of the proposed amendment noticed on October 17, 1986, pertaining to Rule 22SM-3.007. The language discussing the purpose and impact of the proposed amendments would not have given rise to any concerns on his part about the changes that were eventually brought forth in the final version of the rule effective February 1, 1987. On December 10, 1986, Petitioner had an annual leave balance of approximately 536 hours. He used some leave around the Christmas holidays and reduced that, having in mind his belief that only 480 hours could be carried forward into the new year. He felt that he was being threatened in his position as a Senior Manager at HRS, given the fact that a number of Senior Managers were being replaced in that organization in late 1986. By cashing in an amount approaching 500 hours of annual leave, he expected to be paid an amount approximating $10,000, which might assist him in his change in job positions. On April 23, 1987, having not received word on his request for payment of annual leave for Senior Management Service, Petitioner wrote to the Secretary of the Department of Administration to ascertain the outcome of his request for payment. The Secretary was and is Adis Vila. At the same time he wrote to Vivian Pyle, HRS personnel official, making the same request. He expressed concern in his correspondence on the subject of an excessive amount of leave balance being shown by his present employer, the Florida Legislature. Copies of the correspondence to those two individuals may be found as Petitioner's Exhibits 26 and 27 admitted into evidence. By way of response, as noted in Petitioner's Exhibit 28 admitted into evidence, Ms. Pyle answers his inquiry and cites to the fact that Rule 22SM- 3.007(5), Florida Administrative Code, effective February 5, 1987, does not allow for the payment of annual leave upon transfer into the State Legislature system. In correspondence of that same date from Secretary Vila, a copy of which may be found as Petitioner's Exhibit 29 admitted into evidence, the Department of Administration makes reference to the fact that the May 29, 1986, Sections 22SM- 3.007(5) and (6), Florida Administrative Code, indicated that the annual leave should be transferred subject to the rules governing the system where the employee was transferred and that accrued annual leave would be paid only upon termination from state government. The rule referred to in the correspondence does not contemplate persons who had been employed before the rule became effective transferring annual leave to the State Legislature from Senior Management or being paid for that annual leave. Moreover, at the time of his transfer, the applicable version of the rule was the February 1, 1987, statement which specifically disallowed payment for annual leave in any circumstance other than leaving state government. Although an interpretation may be given that the Department of Administration believes that the version of Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, controls the question of the entitlement of Petitioner to payment for annual leave upon his termination from Senior Management Service on March 2, 1987, that interpretation is not an appropriate one. That version of the rule was amended on February 1, 1987, and by such amendment the language of the May 29, 1986, rule was superseded, regardless of the construction given the May 29, 1986, version of the rule. Consequently, the resolution of the Petitioner's claim to entitlement for payment for annual leave credits accrued must necessarily be resolved under the terms of the rule effective February 1, 1987, if controlled by rule. Based upon computer printout information about Senior Management Service employees who were in the program as of February 1, 1987, a copy of which may be found as Petitioner's Exhibit 32 admitted into evidence, Petitioner made calculations as to the value of accumulated annual leave for those employees if they were paid by the Department of Administration at that juncture. That value was in excess of $1.9 million. The calculation made by the Petitioner concerning the amount of potential money Senior Managers would have been entitled to upon transfer does not take into account the possibility of reduced payments in transfer to Career Service under the terms of Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986. Obviously, under that version of the rule and the version of February 1, 1987, termination from state government would allow for the payment of all outstanding annual leave. Petitioner's Exhibit 34 admitted into evidence is a copy of the employee handbook in effect at the time that Petitioner took his position with the Florida Legislature. It establishes that the employee may only carry 360 hours of annual leave forward into January 1 of an ensuing year. Hours above that are converted into sick leave. The sick leave credits are not paid in full if the Petitioner leaves state government after working in the Florida House of Representatives. The value of those sick leave hours would be 1/4 of all hours not to exceed 480 hours. When Petitioner left HRS, he asked to be paid for all but approximately 24 hours accumulated annual leave. It was determined subsequently that this meant that 432 hours were being requested for payment. Instead, HRS transferred 432 hours of annual leave to the Florida House of Representatives. The beginning balance of annual leave hours with the Florida House of Representatives was limited to 360 hours with the balance of 72 hours being subject to conversion to sick leave. The conversion of 72 hours of annual leave to sick leave upon the date of employment with the Florida House of Representatives was further exacerbated by the fact that 476.15 hours of sick leave was also sent over. The significance of this was that with the addition of 3.85 sick leave hours, he would reach the maximum number of allowable sick leave hours to be maintained at any given point by an employee of the Legislature. That amount of hours would have been added in the first month in that 8 hours and 40 minutes of sick are obtained for each month of employment by an employee of the Florida House of Representatives. Consequently, not only had 72 of his hours been disallowed as annual leave credit hours but also 68.15 hours within that 72 hours would have no value, in that 476.15 hours had been transferred as sick leave hours, leaving only 3.85 hours to be converted to sick leave from the 72 annual leave hours. Finally, throughout the 1987 year, Petitioner would earn annual leave credits and compensatory leave credits with the Florida House of Representatives, creating a potential loss in annual leave hours at the conclusion of the calendar year 1987 based upon the maximum number of hours having been transferred into the Florida House of Representatives personnel system upon his hiring and the influence of additional hours added to that total. In the payment for sick leave and annual leave as a member of the Legislature, Petitioner would receive a reduced hourly rate compared to the Senior Management position which Petitioner held with HRS, evidencing further economic disadvantage imposed by disallowing the Petitioner's request for payment for the annual leave upon transfer from HRS to the Florida House of Representatives. To further explain, when Petitioner transferred to the Florida House of Representatives, he took an $8,640 pay cut. Again, payment for the claimed hours of annual leave would have been somewhere approximating $10,000, which would have offset the dire consequences of the salary reduction when changing from HRS to the Florida House of Representatives. Petitioner never sought to present evidence or argument concerning Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, and the amendment to that rule effective February 1, 1987. Prior to this case, he did not participate in the public hearing which was conducted concerning those matters.
