The Issue The issue is whether Respondent committed a unlawful employment practice by discriminating against Petitioner based on an alleged disability in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent initially hired Petitioner as a legal secretary in 1997. At that time, Petitioner worked in Respondent's office in Chipley, Florida. Petitioner suffered no continuing medical problems in 1997. In a memorandum dated April 17, 2001, Respondent's staff advised Petitioner that employees using more leave than they had earned would have to be place on "leave without pay" for the time used in excess of time earned. In a letter dated May 14, 2001, Petitioner advised Respondent that she intended to resign her position as a legal secretary effective May 25, 2001. Petitioner wrote the letter because she was moving to Apalachicola, Florida. Instead of accepting Petitioner's resignation, Respondent offered and Petitioner accepted a transfer as a legal secretary in Respondent's office in Port St. Joe, Florida. Petitioner was able to continue working for Respondent without a break in service. In the summer of 2002, Petitioner began to suffer from an unexplained shortness of breath. Neither Petitioner nor Respondent knew the cause for the symptoms Petitioner was experiencing. By letter dated October 9, 2002, Respondent once again advised Petitioner that she could not use more leave time than the amount she earned. On at least one occasion, Petitioner's excessive time-off caused a reduction in her salary for "leave without pay." In a memorandum dated October 11, 2002, Respondent's staff documented concerns about Petitioner's attendance and performance. One of the concerns was Petitioner's chronic failure to file reports in a timely manner. Petitioner was late in filing the reports even though Respondent allowed her to prepare them at home and send them to Respondent by facsimile transmission from her husband's place of business. In February 2003, Petitioner still did not have a medical diagnosis to explain why she was sick and unable to work. On or about February 13, 2003, Petitioner and her supervisor agreed that Petitioner would take leave without pay pending an excuse from a doctor that she was unable to work. Petitioner's testimony that Respondent offered to let Petitioner have an indefinite leave of absence is not persuasive. On March 12, 2003, Petitioner provided Respondent medical documentation, excusing her from work due to unspecified illness through March 17, 2003. On or about March 14, 2003, Petitioner was admitted to the hospital. Subsequent medical tests revealed blood clots in Petitioner's lungs. Petitioner was eventually released from the hospital with prescriptions for blood thinning medication and oxygen. On or about March 20, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor's note, dated March 18, 2003, excused Petitioner from work for two weeks. On or about April 2, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor stated that Petitioner had been hospitalized with a serious condition called pulmonary embolus and that she continued to have significant symptoms of shortness of breath and fatigue. The doctor's note stated that Petitioner would not be able to work for six weeks. On May 5, 2003, Jackie Pooser, Respondent's Administrative Director, talked to Petitioner by telephone. Ms. Pooser advised Petitioner that she needed to provide another doctor's excuse by May 8, 2003, if she was still under a doctor's care and unable to return to work. Otherwise, Respondent expected Petitioner to resume her duties in Respondent's office in Port St. Joe, Florida. Petitioner was Respondent's only secretary in Port St. Joe, Florida. That office was in dire need of a performing secretary. However, apart from her illness, Petitioner was not anxious to return to work in the Port St. Joe office because she had a personality conflict with the only full-time attorney who worked there. During the May 5, 2003, telephone conversation, Petitioner did not tell Ms. Pooser that she was disabled or request any on-the-job accommodation. Instead, she led Ms. Pooser to believe that she intended to return to her job when authorized to do so by her doctor, hopefully in June 2003. During the hearing, Petitioner admitted that she never requested that Respondent provide her with any type of accommodation. In a letter dated May 6, 2003, Ms. Pooser confirmed the May 5, 2003, phone conversation. In the letter, Ms. Pooser further reminded Petitioner that her medical excuse expired on May 8, 2003. The letter referred to the Public Defender Classification & Pay Plan requirements for a doctor's excuse without which an employee is considered to have abandoned his or her employment position. Petitioner's medical excuse expired on May 8, 2003. Petitioner did not return to work or provide Respondent with further medical documentation. On May 16, 2003, Respondent verbally terminated Petitioner by telephone. A follow-up letter dated May 19, 2003, stated that Petitioner's work performance had not been satisfactory for some period of time. The letter also stated that Petitioner had abandoned her position by failing to provide Respondent with a doctor's excuse. Petitioner's testimony that she requested her physician to send the medical excuse directly to Respondent by facsimile transmission is not persuasive. Petitioner did not call Respondent to inquire whether Respondent received the excuse or to offer any other explanation for failing to send medical documentation to Respondent. Petitioner's doctor subsequently released her to return to work. Petitioner received unemployment compensation for at least one month. In August 2003, Petitioner began working for a real estate company, checking guests into resort rentals. She resigned that job after working for one month. Petitioner admitted during the hearing that she was not disabled when she worked for Respondent. According to Petitioner, she was diagnosed as being disabled in October 2003, after experiencing further medical problems. However, Petitioner has provided no competent (non-hearsay) evidence of that diagnosis. Respondent's attendance and leave policy states as follows in relevant part: STATEMENTS OF POLICY * * * The granting of any leave of absence with or without pay shall be in writing and shall be approved by the proper authority within the Public Defender Office. An employee who is granted leave of absence with or without pay shall be an employee of the Public Defender while on such leave and shall be returned to the same position or a different position in the same class and same work location upon termination of the approved leave of absence, unless the Public Defender and the employee agree in writing to other conditions and terms under which such leave is to be granted. Any leave of absence with or without pay shall be approved prior to the leave being taken except in the case of an emergency where the employee must be absent prior to receiving approval from the proper authority for the absence. * * * (b) If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the Public Defender may place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays may consider the employee to have abandoned the position and resigned from the Public Defender's Office. * * * 3.14 FAMILY AND MEDICAL LEAVE In accordance with the federal Family and Medical Leave Act (FMLA) regulated by the U.S. Department of Labor, eligible employees can receive up to 12 weeks of unpaid leave during any 12-month period for the following reasons: . . . taking care of one's own serious health condition. Employees are not required to take all 12 weeks at once. The employee may request a few days or weeks off at a time (referred to as intermittent leave) or continue to work on a part-time basis (reduced leave). Unless written medical justification deems it necessary, the Public Defender is not required to grant intermittent or reduced leave. * * * (4) Employees must provide reasonable notice (30 days if possible) and make an effort to schedule their leave so as not to unduly disrupt agency operations. The Public Defender may request progress reports from the employees regarding leave status. * * * (7) The Public Defender may require certification from a healthcare provider regarding the need for medical leave, as well as certification of an employee's fitness to return to work. From August 1, 2002, through May 16, 2003, Respondent approved 518 hours or 12 weeks and 38 hours of leave without pay. During the hearing, Petitioner acknowledged that she received the leave without pay. Her testimony that she was not familiar with the above-referenced policies is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Florida, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Herman D. Laramore, Esquire Public Defender, Fourteenth Circuit Jackson County Courthouse Post Office Box 636 Marianna, Florida 32447 Christian C. Griggs 130 25th Avenue Apalachicola, Florida 32320
Findings Of Fact Petitioner, Basil Glinton (Glinton), was employed full time by the Respondent, Department of Health and Rehabilitative Services (Department) as a Public Assistance Specialist II. On September 14, 1984, as a result of a transfer, Glinton was scheduled to start work at the Department's Food Stamp Office, Unit 61, in Miami, Florida. At 9:15 a.m., September 14, 1984, a Friday, Glinton reported to Unit He requested and received his paycheck, and advised the acting supervisor that he had a doctor's appointment which would require his absence from the office for about one hour. Glinton did not return to the office that day. On Monday, September 17, 1984, Glinton reported to Unit 61 and worked from 8:12 a.m. to 5:00 p.m. On that date, the office supervisor, Raquel Tima, met with Glinton and spoke with him about his absence of September 14, 1984. Ms. Lima advised Glinton that she needed a doctor's statement to authorize that absence. No doctor's statement has been produced. Glinton failed to report for work the remainder of that workweek-- September 18-21, 1984. On September 21, 1984, Ms. Lima sent a warning letter, certified mail, to Glinton. The postal claim check reflects that Glinton was notified of the letter on September 24, 1984, September 29, 1984, and October 9, 1984, but failed to claim it. Glinton likewise failed to report for work the following week-- September 24-28, 1984. He did, however, appear at the office on Friday, September 28, 1984, to request his paycheck. On October 1, 1984, Glinton was personally delivered a letter dated September 28, 1984, which advised him that his absence from work since September 18, 1984 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Glinton of his right to petition the Department of administration for a review of the facts and whether they constitute abandonment. By letter dated October 4, 1984, Glinton timely petitioned the Department of Administration for review. In his letter, and at final hearing, Glinton claimed he was ill and under a doctor's care for the period of September 18-28, 1984, and that he had routinely called, or had someone else call, the office to advise them of his illness. While professing "illness" for a two-week period, Glinton failed to offer any evidence of the nature of his illness. He further failed to offer the testimony of his physician, or any other evidence supportive of his claim. While Glinton acknowledges familiarity with the Department's rule which requires that the supervisor be notified of absence due to illness, he made no attempt to contact his supervisor. The only time the office was notified of his absence was on September 19, 1984 when an unknown female telephoned and advised the switchboard operator, without explanation, that Glinton would not be coming to work on that date. Glinton's testimony that his absence from work during the period of September 18-28, 1984 was due to illness, and that he telephoned the office every day during his absence, is inherently improbable and unworthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order that: Petitioner, Basil Glinton, abandoned his position and resigned from the Career Service effective October 1, 1984. Dismisses the petition of Basil Glinton with prejudice. DONE AND ENTERED this 8th day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1985. COPIES FURNISHED: Dniel C. Brown, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Leonard Helfand, Esquire Department of Health and Rehabilitative Services Suite 1070, 410 N.W. 2nd Avenue Miami, Florida 33128 Robert L. McKinney, Esquire Suite 1107 Jackson Medical Tower 1500 N.W. 12th Avenue Miami, Florida 33125 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Johnny L. Richardson, was a test technician in the receiving/inspection department of the Respondent, Group Technologies Corporation, when he became ill, had to be hospitalized, and went on a medical leave of absence on September 6, 1990. Before he was able to return to work, in addition to the illness that resulted in his initial hospitalization, the Petitioner suffered two pulmonary embolisms that required hospitization and had a lobectomy (removal of part of one lung). At the time of his ultimate discharge from the hospital, the Petitioner was diagnosed with a number of medical conditions. He had hypovolemic shock, viral myocarditis, with cardiomyopathy and right ventricular failure, pulmonary abscesses, congestive heart failure, leukocytosis, chest wall pain and pleurisy. In addition, he already had insulin dependent diabetes mellitus. Because of the length of the Petitioner's medical leave of absence, and the Respondent's needs, the Petitioner's former position in the receiving/inspection department was filled during his absence, in accordance with standard company policy. The Respondent's treating physicans released him to return to work on or about July 2, 1991. At the time, the Respondent was aware of the Petitioner's preexisting insulin dependent diabetes mellitus, and was generally aware that the Petitioner's health problems had required hospitalization and a medical leave of absence. But the Respondent did not have detailed medical information concerning the Petitioner's other medical diagnoses. On or about July 2, 1991, the Petitioner contacted the Respondent's staff nurse to advise her that he had been released to return to work. She made arrangements for him to be seen on July 8, 1991, by the Respondent's consulting physician, in accordance with standard procedures for employees on leave of absence for over 90 days. The consulting physician was a specialist in occupational medicine and had a working knowledge of the Respondent's work place and the jobs performed by its employees. He was to use this expertise and knowledge to verify that the employee could do the job he was to perform and to determine whether any restrictions or limitations were appropriate in view of the employee's medical condition. The staff nurse also advised the Petitioner to contact the Respondent's Human Resources Representative (HR Rep) to tell her that his treating physicians had cleared him to return to work. The next day, the Petitioner telephoned the HR Rep, but she was out on vacation until July 8, 1991. On or about July 8, 1991, the Petitioner was seen by the company's consulting physician. A routine medical examination was conducted, including taking a history. The Petitioner told the doctor that he had coronary heart disease, diabetes, lung abcess and hypertension and was taking various medications, including Coumadin and Lanoxin for his heart disease, Lasix and Prednisone for his chronic lung disease and breathing disorders, and insulin for his diabetes. He also reported the lobectomy. Based on the medical examination, the doctor prepared a report stating that he needed medical records from the Petitioner's treating physicians and that the Petitioner would need a job check before reemployment to ascertain the suitability of the particular job in which he was placed. In addition, the report stated that the Petitioner would have to avoid physical stress and avoid lifting heavy weight. The report also suggested that the Petitioner's exposure to chemicals may have to be limited. The doctor also filled out and gave the Petitioner a form stating that the "disposition" of the examination was that the Petitioner was to have "no duty." The Petitioner gave this form to the staff nurse, but the evidence is not clear when. On the day of the examination, before the report was sent to the Respondent's medical office, or even typed, the doctor telephoned a report to the Respondent's staff nurse. The nurse in turn telephoned the HR Rep and told her that, per the doctor's instructions, the Petitioner was not to work with chemicals and was to limit lifting to 25 pounds. The HR Rep also was advised that it would be best for the Petitioner not to work night shifts due to the medications he was taking. As can be seen, the information on the "disposition" form was not consistent with the information in the written report or with the information in the telephonic report the staff nurse gave the HR Rep that day. The Petitioner also saw the HR Rep on July 8, 1991. (She had just returned from vacation.) It is not clear from the evidence whether, at the time of her meeting with the Petitioner, the HR Rep already had received the telephonic report from the company's staff nurse. During the Petitioner's meeting with the HR Rep, the HR Rep told the Petitioner that she would have to determine whether the company had any test technician positions, or other positions with status and pay commensurate with the Petitioner's former position, that were open. Under company policies, employees returning to work after an extended leave of absence, during which their former positions were filled, were entitled to be considered for other positions with status and pay commensurate with the employee's former position, if any were available. The HR Rep reviewed her open requisition lists and determined that there were no suitable positions open at the time. (On or about June 28, 1991, the Respondent had extended job offers, with start dates in early July, to eight applicants for test technician positions that the company had been in the process of filling in June.) She telephoned this information to the Petitioner on either July 8 or 9, 1991, and told him that she would have to lay him off with recall rights. Actually, company policy provides for laying employees off with recall rights as a result of reductions in work force. It does not specifically apply to the situation where an employee returns to work after an extended leave of absence, during which the employee's former position was filled, and there are no positions with status and pay commensurate with the employee's former position available. But, since there was no other employment status designated by personnel policies for such an employee, the company felt that it was appropriate to lay off such an employee with recall rights. Under company policy, an employee who is laid off with recall rights has a right to be considered for recall before new employees with similar skills are hired. This is not a guarantee of reemployment but only right to be considered for employment before "external candidates" are considered. Actually, even under this interpretation of company policies, the Petitioner should have been laid off with recall rights only if he was ready to return to duty with restrictions (as indicated in the consulting physician's written report, and in the telephonic report from the staff nurse to the HR Rep). If he was unable to return to duty at that time (as indicated by the "disposition" form), he should have been continued on medical leave of absence. At the conclusion of their meeting on July 8, 1991, the HR Rep told the Petitioner that he would be contacted if there were any openings for him, or words to that effect. On or about July 12, 1991, the HR Rep became aware of an employee requisition request with a position with status and pay commensurate with the Petitioner's former position. She contacted the hiring supervisor and asked if he was interested in hiring the Petitioner for the position. The hiring supervisor quickly replied that he was not interested in hiring the Petitioner. Asked why not, he answered that he knew the Petitioner's attendance and performance history from having worked with the Petitioner in past years, and from knowing the Petitioner's reputation, he was not interested in hiring him. Further specifics about the hiring supervisor's reasons for not wanting to hire the Petitioner were neither given nor asked for until approximately January, 1992, which is after the filing of the Charge of Discrimination in this case. If asked, the hiring supervisor would have said that, during a period of time in which they worked together in the early 1980s, the Petitioner was frequently absent from work, frequently wandered away from his work station, and frequently could not be found when needed. Later, in the late 1980s and early 1990, the hiring supervisor had several occasions to inquire as to the reason for delays and was told that there was a bottleneck in the receiving/inspection department because the Petitioner was absent from work again. The Petitioner's absences made it difficult for those depending on the Petitioner's work to meet production deadlines. To attempt to deal with the Petitioner's absences, the company tried to get the employee in the position in the shifts before and after the Petitioner's shift to work overtime. After talking to the hiring supervisor, the HR Rep reported to her supervisor, who helped her research the Petitioner's personnel file to determine if there was "reasonable justification" for the hiring supervisor's rejection of the Petitioner on the basis given to the HR Rep. They learned from the Petitioner's personnel records that, on or about May 17, 1990, the Petitioner's supervisor counseled him that his attendance had to improve. In June, 1990, the Petitioner's performance appraisal reflected the attendance problems. It indicated some improvement but stated that further improvement was necessary for the Petitioner's attendance record to be within company norms. The appraisal also indicated that the Petitioner's performance no longer was improving, as the prior year's appraisal indicated it had been. It is not clear from the evidence whether the HR Rep and her supervisor also reviewed the Petitioner's attendance records. If they had, they would have also seen that the Petitioner was absent from work a total of 220 hours in 1989, not including 64 hours during plant shutdowns. From January to May, 1990, the Petitioner was absent a total of 46 hours, in addition to 124 hours of vacation leave without prior notice. After Sumner declined to hire the Petitioner, the HR Rep did not ask other hiring supervisors to consider the Petitioner for openings before considering external candidates. She did not tell the Petitioner that he had been rejected for the opening on or about July 12, 1991, or that his recall rights effectively had been terminated (in that she no longer was asking hiring supervisors to consider the Petitioner for openings before considering external candidates.) Nonetheless, the Petitioner was not surprised not to be recalled because he knew that employees who are laid off with recall rights are rarely recalled. The Petitioner acknowledges that he cannot prove, by direct evidence, that the Respondent discriminated against the Petitioner on the basis of a handicap or perceived handicap. Instead, the Petitioner argues that it should be inferred from the evidence that the Respondent, first, laid off the Petitioner instead of maintaining him on medical leave of absence and, second, did not recall him, in furtherance of plan to terminate his employment because of his handicap or perceived handicap. The inference the Petitioner seeks to have drawn was not proven by a preponderance of the evidence. First, as for the decision to lay the Petitioner off, there is no persuasive evidence that it would have been significantly more difficult ultimately to terminate the Petitioner's employment if the Petitioner had been maintained for the time being on medical leave of absence. Second, as to the decision not to recall the Petitioner, it was not proven that the Respondent did not recall the Petitioner for any reason other than the one articulated by the Respondent--namely, hiring supervisor Sumner rejected him for the reasons he gave. The Respondent is an equal opportunity employer and takes affirmative, proactive steps to recruit, hire and retain minorities and handicapped persons. It has completed required affirmative action plans, does adverse impact analyses on a semiannual basis, and advertises and recruits from agencies that deal with disabled persons. While the Respondent did not hire the Petitioner back after his extended medical leave of absence, it has hired others back after medical leaves of absence of 90 days or more. One employee was hired back after heart catheterization and coronary bypass surgery. Another was hired back after rupturing a disc and having back surgery. Both were returned to work with restrictions, after seeing the same consulting physician the Petitioner saw. Their medical conditions were at least as susceptible of being perceived as being handicaps as the Petitioner's. In both of those cases, the employee was able to be returned to the positions from which they had to take leave; they did not have to be laid off. Conversely, other employees who had not been on medical leave of absence but were laid off with recall rights in connection with a reduction in work force also have not been recalled. Three such employees who were laid off during the August, 1990, reduction in force were not even recommended to hiring supervisors for suitable positions that came open during the period of time in which their recall rights were effective, even though they were technically more qualified for the positions, based on their higher job grade levels, than the people ultimately hired for the jobs. The reason they were not recalled was that they had been laid off because their job performance ranked them at the bottom of the "totem pole" of employees subject to possible layoff in the reduction in force. The Petitioner survived the August, 1990, reduction in force because, based on need, no reduction was made in the receiving/inspection department. If there had been, the Petitioner would have been the first to be laid off due his rank at the bottom of the "totem pole" for the test technician positions in his department. The failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But none of those possibilities would constitute, nor do they prove, discrimination on the basis of handicap or perceived handicap.
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 in this case. RECOMMENDED this 15th day of September, 1993, 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 15th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1224 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated to the extent not subordinate or unnecessary. Penultimate sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 10.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. As to second sentence, not necessarily all such employees see Myint on returning. It depends on the staff nurse's judgment as to the necessity. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Rejected as not proven that the policy itself "entitled" the Petitioner; rather, it was the Respondent's favorable interpretation of the policy. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20. As to the last sentence, Sumner gave some specifics at the time, but not many, as reflected in the Findings of Fact. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Accepted and incorporated to the extent not subordinate or unnecessary. (However, as to 22, at least the last time, everyone under Gonzalez got a "merit" increase, and the Petitioner got the smallest raise because his job performance ranked him the lowest on the "totem pole.") 24. First sentence, accepted and incorporated. The rest is rejected as subordinate to facts contrary to those found. 25.-27. In part accepted, but in part rejected. Rejected as not proven that the Petitioner was not considered for the July 12, 1991, opening. Sumner did consider the Petitioner and rejected him. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." But, if not "reasonable," their actions did not prove discrimination on the basis of handicap or perceived handicap. Rejected as not proven that Wilson "considered Richardson a potential problem employee because of his long illness." Rejected as not proven that the Respondent ever considered the Petitioner "unqualified." Rejected as not proven that the Respondent discriminated against the Petitioner on the basis of handicap or perceived handicap. Rejected in part as argument. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary. 28.-32. Accepted but generally subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. 8. Rejected as contrary to the greater weight of the evidence that his "performance" declined. Rather, the appraisal would indicate that the rate of improvement in his performance had declined. 9.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Generally, accepted and incorporated to the extent not subordinate or unnecessary. (The information imparted by the doctor was somewhat ambiguous.) 24.-31. Generally, accepted and incorporated to the extent not subordinate or unnecessary. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." And the Respondent's failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But, as found, those actions did not prove discrimination on the basis of handicap or perceived handicap. 32.-34. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ronald W. Fraley, Esquire Fraley & Fraley, P.A. 501 East Kennedy Boulevard, Suite 1225 Tampa, Florida 33602 Grant D. Peterson, Esquire Haynsworth, Baldwin, Johnson & Harper 1408 North Westshore Boulevard, Suite 1000 Tampa, Florida 33607 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
The Issue The issue in the case is whether Vera Evans (Petitioner) was the subject of unlawful discrimination by Life Care Center of Altamonte Springs (Respondent) on the basis of disability, in violation of chapter 760, Florida Statutes.
Findings Of Fact Since 1977, and at all times material to this case, the Petitioner has been employed as a licensed practical nurse (LPN). In 2003, the Petitioner began her employment as an LPN with the Respondent in their skilled nursing unit, where she remained employed until her termination from employment on March 26, 2015. According to the formal job description adopted by the Respondent for its LPNs, persons employed as LPNs by the Respondent must “practice dependable, regular attendance” because the essential function of the LPN position is to provide patient care. The Respondent must insure that adequate staffing is available and present to provide such care. The failure of an LPN to be present for work and to be prepared to carry out the functions of the position increases the workload of other staff and can negatively affect patient care. The Respondent has adopted formal policies related to various forms of leave, including routine sick leave as well as extended requests for leave related to medical issues, such as Family Medical Leave Act (FMLA) leave. Additionally the Respondent’s formal policies encourage an employee to request an accommodation when medical impairments present challenges to the performance of the essential functions of an employee’s position. At the hearing, the Petitioner acknowledged that she was aware of the Respondent’s attendance and leave policies. The Petitioner previously requested and received a work accommodation in February 2014, when she was unable to work a full schedule due to a medical issue. In November 2014, the Petitioner took FMLA leave to address another medical issue. According to the documentation submitted by the Petitioner to the Respondent as part of her FLMA leave request, the period of the Petitioner’s incapacity was November 17, 2014, through February 28, 2015. The Petitioner requested and was granted 12 weeks of FMLA leave, which commenced on November 17, 2014. The end of the Petitioner’s 12-week FMLA leave period was February 9, 2015. The Respondent’s FMLA leave policy specifically provides that an employee must return to work on the next scheduled workday after the expiration of the leave period, unless the employee provides a doctor’s note and receives approval from the Respondent. The Respondent’s FMLA leave policy also requires an employee to periodically contact the Respondent during the leave period and report her status, including her intention to return to work. During the time that the Petitioner was on approved FMLA leave, the Petitioner failed to contact the Respondent to indicate when she would be available to return to work. Several times during the Petitioner’s absence, Jermaine Morris, the Respondent’s staffing coordinator, contacted the Respondent and attempted to determine when she would be able to return to work. Mr. Morris did so at the direction of Astrid Lopez, the Respondent’s Director of Human Resources. Mr. Morris’ attempts were unsuccessful because the Petitioner was unable to identify an anticipated return date during their conversations. The Petitioner’s approved FMLA leave expired on February 9, 2015, by which time the Petitioner had failed to communicate to the Respondent her intention to return to work. The Respondent’s adopted leave policy specifically requires that non-FMLA leave requests must be submitted in writing to the requesting employee’s immediate supervisor, and must state the purpose of the request and the proposed dates of absence. Although the Petitioner had not filed a written request for additional leave or submitted the required documentation prior to the expiration of her FMLA leave, the Respondent granted non-FMLA leave to the Petitioner when the Petitioner did not return to work. At the same time, Ms. Lopez also placed the Petitioner on an “as needed” work status (also known as “PRN” status). The PRN classification allowed the Petitioner to remain on the Respondent’s employment roster and required only that she work a single shift during a 60-day period. The Respondent’s leave policy provides that non-FMLA leave is limited to no more than six weeks. Accordingly, the Petitioner’s non-FMLA leave period continued through March 26, 2015. Ms. Lopez testified that, despite the Petitioner’s failure to submit a written request for non-FMLA leave policy, she decided to grant non-FMLA leave because the Petitioner was a valued employee of the Respondent. The Petitioner never submitted a written request for non-FMLA leave, but apparently after Ms. Lopez had already approved the non-FMLA leave, the Petitioner had a doctor’s note delivered to the Respondent. After the Petitioner filed her complaint of discrimination with the FCHR, the Respondent, in preparing to respond to the Petitioner’s complaint, located a note in the Petitioner’s personnel file, purportedly written by a physician on a prescription pad and signed February 19, 2015. The note indicated that the Petitioner would require an additional three months of leave. The Petitioner’s approved FMLA leave had expired prior to the date of the note. For reasons that are unclear, the note was never delivered to Ms. Lopez for her review. Ms. Lopez had approved the non-FMLA leave for the Petitioner prior to the date of the note. The Petitioner never contacted anyone in the Human Resources office to follow-up on the note, and apparently assumed that an additional three months of leave had been approved. The Respondent’s failure to respond to the note was inadvertent. Had the Petitioner actually submitted a written request for non-FMLA leave as required by the Respondent’s policy, the Respondent would have been made aware of the note. There is no evidence that the Respondent’s failure to respond to the note was purposeful or discriminatory against the Petitioner. The Respondent’s leave policy also sets forth the procedure and timelines by which the benefits of an employee on non-FMLA leave are suspended and a COBRA insurance notice issued. The Petitioner’s benefits were suspended and she received a timely COBRA insurance notice as provided by the policy. On March 26, 2015, at the conclusion of the approved non-FMLA leave period, the Respondent terminated the Petitioner’s employment. Prior to the termination, the Petitioner had failed to work a single shift as required by her PRN classification. Moreover, the Petitioner had failed to comply with state- mandatory LPN training requirements that had been imposed prior to the termination date. The Petitioner offered no evidence at the hearing that the Respondent’s decision to terminate her employment was at all related to disability. To the contrary, the Respondent approved the leave requested by the Petitioner, and in fact, granted additional leave to the Petitioner, without her request, so that she remained on the Respondent’s roster of employees. There is no evidence that the Respondent failed to provide any disability-related accommodation requested by the Petitioner. At the hearing, the Petitioner testified that she was not interested in returning to work for the Respondent.
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 Petitioner's complaint of discrimination. DONE AND ENTERED this 18th day of May, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of May, 2016.
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Senior Clerk for Respondent. At sometime prior to December 19, 1988, Petitioner purchased a nonrefundable airline ticket departing on December 23, 1988, and returning on December 30, 1988. Thereafter, Petitioner requested 40 hours of annual leave for the workdays of December 23, 1988, and December 27-30, 1988 and requested her personal holiday for the workday of December 28, 1988. On December 19, 1988, Petitioner was informed that she had 21.2 hours of available annual leave and was granted 16 of those hours for the workdays of December 23, 1988, and December 27, 1988. Petitioner's request to take her personal holiday on December 28, 1988 was denied, as was her request for annual leave for the period of December 28-30, 1988 denied. Upon being advised that a portion of her leave request had been denied, Petitioner told her supervisor about the airline ticket and that she "could not afford to lose my investment of my air-fare." Her supervisor, in turn, advised Petitioner that if she were absent December 28-30, 1988 she would be deemed to have abandoned her position. Notwithstanding such knowledge, Petitioner was absent from work without authorized leave for the three consecutive workdays of December 28-30, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1185 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 3. Not supported by competent and substantial evidence. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 5. Addressed in paragraph 4. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ms. Nancy M. Morrison 1925 Coolidge Hollywood, Florida 33020 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues are whether Petitioner received a salary overpayment from Respondent for leave usage to which he was not entitled, as set forth in correspondence dated April 26, 2013; and, if so, whether Respondent is entitled to a repayment for the salary overpayment made to Petitioner.
Findings Of Fact Petitioner, Bruce Deterding, was an employee of the Department of Health, having served as an executive director of a medical practice board, making him a Select Exempt Service (SES) employee. Petitioner entered into a settlement agreement with the Department on December 19, 2012. The agreement required Petitioner to resign his position with the Department effective February 28, 2013, and included the following conditions: Petitioner's last day in the office would be December 18, 2012, one day preceding the signed settlement agreement; and Petitioner was required to utilize 384 hours of accrued annual leave beginning on December 19, 2012, and ending on February 27, 2013. Petitioner did not participate in the preparation of the settlement agreement, but agreed to its terms by his signature. The agreement was signed by the Division of Medical Quality Assurance Director Lucy C. Gee on behalf of the Department. From December 19, 2012, through February 28, 2013, Petitioner performed as obligated under the agreement. The Department paid Petitioner for the 384 hours of leave as required by the agreement. Petitioner relied on the Department's representations that he would be able to purchase his former military service time from the State Retirement System and retire with 30 years of state service on the resignation date set forth in the agreement. Petitioner demonstrated through a screen shot of his personnel records in the "PeopleFirst" system that he had an available balance of 428 hours of annual leave at the time he entered into the settlement agreement with the Department. The Department's employee verified through PeopleFirst that sufficient hours of leave were available prior to presenting the settlement agreement offering to pay 384 hours of leave to Petitioner. The Department notified Petitioner by a letter dated April 26, 2013, that he had received salary overpayments. Specifically, the letter stated that two payments in the amounts of $1,262.48 and $1,717.56, dated February 22, 2013, and March 8, 2013, respectively, had been erroneously made to him. Petitioner, as an SES employee, received 176 hours of annual leave on his leave accrual anniversary date of July 1 each year. In 2010, Petitioner received an annual leave accrual of 176 hours on June 18, 2010, and a second annual leave accrual on July 1, 2010. On April 26, 2013, Petitioner had a telephone conversation with Meshelle Bradford, one of the Department's payroll employees, concerning potential salary overpayments. During that conversation, Petitioner acknowledged he had received the two salary accruals totaling 352 hours on June 18 and July 1, 2010. Petitioner testified that he assumed he was the beneficiary of an "extraordinarily good hire date" which entitled him to receive leave on his former (from his previous state employment) and new leave accrual dates. The Department conducted a payroll and leave audit after the date of Petitioner's resignation and separation from the agency. The audit revealed that Petitioner had been overpaid for annual leave hours that he had accrued in 2010 by mistake. Petitioner had been paid for annual leave he used in February 2013, when he had exhausted all of his accrued leave. During the two-week pay period of February 1 through 14, 2013, Petitioner received pay for 58.5 hours of leave he did not have available, and for the two-week pay period of February 15 through 28, 2013, Petitioner received pay for 80 hours of leave he did not have available, resulting from the double accrual of leave in June and July 2010. The Department's position is that Petitioner should have been in leave without pay status for the 58.5 and 80 hours of leave for which he was paid in February 2013. The calculated overpayment for the unavailable leave is $2,980.04. The Department seeks reimbursement from Petitioner for that amount. Petitioner disputes that he owes any amount due to the fact he entered into a settlement agreement that delineated the payments to be made by the Department to him as a condition of his resignation. The Department's Agency Attendance and Leave Policy, in section VI.D.3, states: "It is the employee's responsibility to maintain an accurate accounting of their leave balances."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health requiring Petitioner to repay the overpayment of salary in the amount of $2,980.04. DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2013. COPIES FURNISHED: Mark John Henderson, Esquire Department of Health 2585 Merchants Row, Room 110J Tallahassee, Florida 32399 Bruce Milton Deterding 4841 Old Bainbridge Road Tallahassee, Florida 32303 Althea Gaines, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact Burney was employed by HRS until 5:00 p.m. on September 28, 1988, when she was deemed to have abandoned her position. Her regular working hours were 8:00 a.m. to 5:00 p.m., Monday through Friday. Burney was not at work on September 26, 1988. She maintains that she had someone call in for her to inform HRS that she would not be in that day. Burney does acknowledge that her supervisor, Sherry Martin, told the caller that she could not approve leave for that day. Burney did not report for work on September 27, 1988. Burney called her office and spoke with another clerk, not with her supervisor. Her supervisor was unavailable and the clerk did not have the authority to approve leave. Burney again failed to report for work on September 28, 1988. She called in and spoke with Mrs. McClenton, another supervisor. Burney informed Mrs. McClenton that she had a drug problem which was why she had not been at work. Burney asked her where she could get some help for her problem. Burney was told that her supervisor could not help her and that she would have to get help on her own. On October 4, 1988, HRS sent Burney a certified letter advising her that her absence from work on September 26-28, 1988, was not authorized and that she was deemed to have abandoned her position and to have therefore resigned from Career Service, effective 5:00 p.m. September 28, 1988. On October 7, 1988, Burney returned to her office seeking her paycheck. She was told by the personnel office that leave was not approved for that period and that she was no longer employed there. Burney did not report for work on any day between September 26 and October 7, 1988. She had not requested leave on a leave request form and no leave was authorized by her supervisor for this period. Burney knew that she was not on approved leave and had been told that her supervisor would not approve leave for that period. Leave is only authorized when it is requested on an appropriate leave request form and is approved by a supervisor. Rule 22A-7.010(2), Florida Administrative Code, provides: An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service...
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order and therein find that Angela B. Burney has abandoned her position, deem that Angela B. Burney has effectively resigned from Career Service, and dismiss the petition for review. DONE and ENTERED this 20th day of February, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1988. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Angela B. Burney 1585 West 35th Street Jacksonville, Florida 32209 Scott D. Leemis Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue Whether the Respondent discriminated against the Petitioner contrary to statute on the basis of Petitioner's disability.
Findings Of Fact Petitioner was diagnosed with cancer in December of 2002, and was on sick leave off and on from the time of her diagnosis until the first part of 2004. Later, after surgery, the Petitioner was on extended leave while she recovered from surgery and later from chemotherapy. In June of 2003, Petitioner was rapidly approaching the end of her available leave, but, more significantly, the end of the leave required to be granted under the Family Medical Leave Act (FMLA). This situation resulted in correspondence between Petitioner and the Department about extension of her leave and her return to work. On June 17, 2003, Jeff Carr, Human Resources Manager for the Department, sent a letter to Petitioner in connection with her medical leave status. This letter advised Petitioner that an agreed-upon extension of leave would cover Petitioner until July 4, 2003. As the latest physician's statement submitted by Petitioner indicated that Petitioner was unable to perform the essential functions of her job, the letter from Mr. Carr advised Petitioner of options available to her: 1) a return to work on July 5, 2003, if she was released by her physician as able to perform the essential functions of her job; 2) resignation if she was unable to perform the essential functions of her job; 3) regular or disability retirement. If Petitioner did not choose one of the three options, she was advised she would be terminated. On June 23, 2003, Petitioner wrote to Beth Englander, District Administrator, requesting additional leave in accordance with her doctor's latest evaluation. A copy of a note from Petitioner's oncologist was attached which stated that Petitioner would need to be off at least six to eight weeks. In addition, Petitioner noted that following completion of chemotherapy she would need additional surgery and would need to make additional requests for leave. Petitioner e-mailed Ms. Englander on June 24, 2003, and Ms. Englander replied that same day. The reply again advised Petitioner of her three options to avoid termination for inability to perform her job. After having been twice advised of her options, Petitioner wrote Mr. Carr on June 27, 2003, advising that she would not finish her chemotherapy treatment until approximately September 1, 2003. However, no estimate was given for Petitioner's medical release to return to work following the additional surgery Petitioner said she would need in her letter to Ms. Englander of June 23, 2003. In her letter of June 27, 2003, Petitioner requested additional leave as what she claimed to be a reasonable accommodation under the Americans With Disabilities Act (ADA). Petitioner also said she wanted to work at home in lieu of leave. However, Petitioner provided no doctor's statement to contradict the one she submitted saying that she would be unable to work for six to eight weeks. On July 6, 203, Petitioner wrote Mr. Carr that she was accepting the alternative of retirement. In this letter, Petitioner again stated that she was not finished with treatment and would need additional time to complete the treatment. At the hearing, Petitioner admitted that she was unable to inspect daycare facilities to conduct the inspections required as an essential function of her position. In addition to the regular inspections, initial licensing and relicensing inspections, day care licensing counselors also have to make inspection in response to complaints received by the Department. Petitioner said that, as an accommodation, she wanted to be relieved from conducting inspections and be permitted to process the inspection reports prepared by other counselors and other paperwork. Although Petitioner contended at the hearing that she might have been able to work part-time, she admitted that after submitting the statement that she could not return to work for at least six to eight more weeks she had not gone back to her doctor to ask him to clear her for part-time work. Petitioner also speculated that she could have performed inspections on a part-time basis if she was provided with appropriate protective equipment and a mask. Petitioner stated her desire and request for more time off was because of fatigue. She did not request to work part-time, or protective devices as an accommodation at any time before she chose the option of retirement. Petitioner instituted an action before PERC contending that she was forced to either resign or retire in retaliation for her making of a complaint to Department's inspector general. That action resulted in a recommended order by the PERC hearing officer on April 21, 2004, that recommended that PERC dismiss Petitioner's claim. In that recommended order the hearing officer found as fact that: On June 23, 2003, Welch (Petitioner) sent a letter to District 13 Administrator Beth Englander, which included a doctor's note indicating she needed six to eight more weeks of leave. Englander responded to Welch and told her that, because her leave was exhausted and because of the operational needs of her unit, the Agency would not extend the leave. On June 27, Welch replied to Carr's June 17 letter and asked for accommodation under the Americans With Disabilities Act (ADA). The Agency did not specifically respond to this request. However, Welch was not entitled to ADA leave because she could not perform the essential functions of her job in June when she made her request. The full PERC in a final order of May 11, 2004, adopted the recommended order of the hearing officer, including this finding of fact. Petitioner had not been released by her doctor to return to work and perform her duties at the time she chose retirement in July 2003, and admitted that she was not able to come to work at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing Petitioner's charge of discrimination. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005. COPIES FURNISHED: Melody Welch 34548 Oak Avenue Leesburg, Florida 34788 Carolyn Dudley, Esquire Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 32399-9070 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner was employed by Respondent beginning in 1985 and, at all times material hereto, was supervised by Dr. Frank A. Coliazzi. Petitioner had been made aware of the rules and policy of the Respondent in regard to unauthorized leave of absence. Specifically, Petitioner was counselled in this regard on March 26, 1986, by Dr. Frank A. Colliazzi for his unauthorized leave of absence on March 25, 1986. Petitioner knew, or should have known, that un-authorized leave of absences could result in disciplinary action or the loss of employment through abandonment. Prior to April 14, 1986, Petitioner had a history of unauthorized leave of absences. In fact, Petitioner was absent without authorized leave on April 9 & 11, 1986, after being counselled as late as March 26, 1986 in this regard. Petitioner was absent without authorized leave on April 14, 15 & 16, 1986. Petitioner appeared briefly at the work place on April 15, 1986 but did not go to work and left immediately when requested to work by Dr. Colliazzi, with a promise to return to work the next morning, April 16; 1986, at 8:00 a.m. The Petitioner did not request a leave of absence at this time and did not return to work on April 16, 1986 as promised. Respondent's certified letter of April 16, 1986, informing Petitioner that Respondent considered him to have abandoned his position because of his three (3) consecutive days of unauthorized leave was not received by Petitioner until April 24, 1986 due to Petitioner's failure to notify Respondent of his change of address. However, Petitioner was made aware of the letter and its contents by Maxine Fields on April 21, 1986. Petitioner's failure to return to work on April 17 & 18, 1986, lends support to Respondent's contention that Petitioner had abandoned his job since Petitioner was not aware of Respondent's position on his abandonment until April 21, 1986. At no time relevant to this proceeding was leave requested by Petitioner or granted by Respondent. Although Petitioner received notice of the hearings, he failed to appear at either one and present evidence in rebuttal to Respondent's position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Respondent in deeming the Petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. RESPECTFULLY ENTERED and SUBMITTED this 25th day of November, 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2604 The following constitutes my specific rulings pursuant to Section 120.59(1), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by Respondent: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 4. 4. Adopted in Finding of Fact 5 & 8. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 7. 7. Adopted in Finding of Fact 6 & 7. 8. Adopted in Finding of Fact 9. COPIES FURNISHED: Judy Waldman, Esquire General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 Barbara Wingo, Esquire Associate General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 James H. Foster 3216 Lancastor Lane Tampa, Florida 33619 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
Findings Of Fact Petitioner, Marshall T. Hazlewood, was an employee of respondent, Department of Transportation (DOT), from April 12, 1972 until July 14, 1983 at the Pinetta Toll Plaza in Satellite Beach, Florida. He served in the positions of toll collector, shift supervisor and manager I at that facility. In April, 1983 Hazlewood advised his supervisor that he would retire in July, 1983. By this time, Hazlewood had accumulated annual leave in excess of 240 hours, as well as an undisclosed amount of compensatory time and sick leave. His supervisor asked him not to use his annual leave in excess of 240 hours until July, or just prior to his retirement, because of a shortage of other personnel services (OPS) money for that fiscal year. In other words, if Hazlewood used his leave in April, May or June, the supervisor would necessarily have to use current fiscal year OPS funds to hire a temporary replacement. Hazlewood acquiesced and continued to work until June without taking annual leave. On June 16, 1983 Hazlewood put in an annual leave slip requesting annual leave (except for July 4, a holiday, and his personal holiday) from June 27 through July 14, 1983, his retirement date. This brought his total annual leave down to 238.50 hours as of the close of July 14, his date of retirement. The leave slip was approved by his supervisor and forwarded to the bureau chief in Tallahassee. He also spoke by telephone with the coordinator for the Tampa section and the assistant bureau chief in Tallahassee concerning his retirement. Whether he told them of his plans to use annual leave the last few weeks of employment was not disclosed. In any event, no one questioned his leave slip. When he retired on July 14, 1983 Hazlewood received his normal pay plus compensation for unused sick leave. He also received a warrant in the amount of $1,005.68 which represented compensation for 238.50 hours of unused annual leave. Because the pay system at DOT is computerized, and not manually checked until several weeks later, Hazlewood received his final pay without a hitch. Later on, after a manual review of his file was made, it was learned that Hazlewood's final pay had been improperly computed. DOT requested a return of the warrant, and apparently reissued a second warrant which was $324 less than the first. That prompted the instant proceeding. According to Rule 22A-8.10(4)(c), Florida Administrative Code, promulgated by the Department of Administration (DOA), and which must be adhered to by DOT, an employee cannot be paid for leave after his "last official day of employment." An employee's last official day of employment is interpreted to mean when he is physically present on the job. The parties have stipulated that Hazlewood's last official day of employment was June 26, 1983, when he actually reported to work. The DOA also interprets the rule to prohibit the taking of annual leave in conjunction with an employee's separation from service. This includes the taking of such leave merely to use up sick leave or to bring one's total annual leave down to the maximum reimbursable amount of 240 hours. These interpretations were disseminated by DOT to all of its field offices, including the chief of toll facilities, as early as October, 1981, and are generally described on page 21 of the DOT Employee Handbook which Hazlewood had. They are also expressed in "Interpretation of Attendance and Leave Rules" issued by the DOA. After determining Hazlewood's last date of employment to be June 26, his balance of annual leave was properly reduced to 176 hours rather than 238.50 hours. This balance was arrived at by deducting those hours of leave improperly used during the pay period ending July 14, 1983, and for which he had already been paid, from the 240 maximum hours one can accumulate at date of retirement. The DOT accordingly reissued Hazlewood a check for 176 hours of unused leave, which was $324 less than the amount previously given to him. This was actually less than the amount DOT should have deducted, for it did not seek to recover excess payments during the two-week pay period ending June 30, 1983. Petitioner contends that because no one advised him that taking leave in the manner he did was improper, it is unfair to now penalize him for doing so. He also points out that his supervisor approved the leave slip and was the one who suggested he delay taking leave until July because of budgetary problems. He considers it morally wrong for DOT to treat him in the manner that it has. The DOT acknowledged that the leave slip was approved, but stated the supervisor was apparently unaware of existing Department policy. It contends that all non Tallahassee offices are periodically advised of personnel rules, and that the Hazlewood case was one of a few that sometimes occurs. After the Hazlewood error came to light, DOT issued another memorandum on September 1, 1983 to all personnel explaining the policy for leave time upon separation from service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Marshall T. Hazlewood to have reinstated $324 in payments for unused annual leave be DENIED. DONE and ENTERED this 8th day of March, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1984. COPIES FURNISHED: Mr. Marshall T. Hazlewood 333 McLeod Drive Cocoa, Florida 32922 Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
