The Issue Whether Respondent's employment should be terminated "for being absent without approved leave," as recommended in the Superintendent of Schools of the School District of Palm Beach County's Petition for Involuntary Resignation.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the School District. Systemwide testing programs in the School District are coordinated by the School District's Department of Research, Evaluation, and Accountability (DREA). At all times material to the instant case, Marc Baron headed DREA. DREA operates a test distribution center. Cherie Boone is now, and was at all times material to the instant case, in charge of the DREA test distribution center. Ms. Boone supervises four employees. As their supervisor, she is "responsible for [among other things, their] time and attendance." Respondent is employed as a materials handling technician with the School District. At all times material to the instant case, he was assigned to work in the DREA test distribution center under the direct supervision of Ms. Boone. As a materials handling technician employed by the School District, Respondent is a member of a collective bargaining unit represented by the National Conference of Firemen & Oilers, Local 1227 (NCF&O) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School District and NCF&O (NCF&O Contract). Article 7 of the NCF&O Contract discusses "employees['] contractual rights." It provides as follows: SECTION 1. Probationary Employees All newly hired or rehired employees may be subject to a probationary period of ninety (90) workdays. Employees who have not completed such period of employment may be discharged without recourse. Probationary employees shall not be eligible for any type of leave except accrued sick leave, annual leave, or short term unpaid leave (due to illness) not to exceed five (5) days. SECTION 2. Permanent Employees Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the NFC&O Contract addresses the subject of "[m]anagement [r]ights." It provides as follows: NCF&O and its members recognize the responsibility of the District to operate and manage its affairs in all respects in accordance with its responsibilities as established by law and as delegated by the State Board of Education; and the powers of authority which the District has not officially agreed to share by this agreement, are retained by the District. It is the right of the District to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the District to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons, provided, however, that the exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequences of violating the terms and conditions of this agreement in force. The District has the sole authority to determine the purpose and mission and the amount of the budget to be adopted by the School Board. The District and NCF&O agree that the District has and retains unaltered, its legal right to select, assign, reassign, or relocate any of its employees, and to carry out its mission under the law and State Board of Education Regulations, unless otherwise specifically enumerated herein. Except to the extent it has been done prior to May 26, 1998, no bargaining unit work which would result in the loss of jobs by members of the bargaining unit, shall be contracted out without prior consultation with the Union. It is understood that changes under this Article may not be arbitrary and capricious, and it is agreed that the District has those rights which are enumerated within Florida Statute 447; however, nothing herein shall relieve the parties of their ability to request impact bargaining. Among the "rules and procedures" that the School District, through the School Board, has established in exercising its "[m]anagement [r]ights" are School Board Directive 3.27 and School Board Policy 6Gx50-3.80, which provide, in pertinent part, as follows: School Board Directive 3.27 * * * Resignations. If employees desire to be released from their employment contract the following procedures are to be followed: * * * c. When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employee stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. * * * Suspension/Termination. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes.[2] * * * Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement. * * * 6. When a recommendation for suspension and termination is made, the procedures listed in School Board Policy 3.27 shall be followed. * * * School Board Policy 6Gx50-3.80 A leave of absence is permission granted by the Board, or allowed under its adopted policies, for an employee to be absent from duty for specified periods of time with the right of returning to employment on the expiration of the leave. All absences of School Board employees from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance by the School Board and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. No leave except military leave shall be granted for a period greater than one (1) year. A new leave application may be filed and granted at the expiration of leave, but automatic renewals of leave shall not be allowed. Leave may be with or without pay and provided by law, rules of the State Board of Education, School Board policy, and negotiated contracts. If the terms of the collective bargaining agreement differ from this Policy, the language of the employee's agreement will take precedence. The following types of leave are available for School District employees: Leave for personal reasons Annual leave for 12-month personnel Sick leave Catastrophic leave Injury or illness in-line-of-duty leave Sabbatical leave Temporary military leave Regular military service leave Professional leave and extended professional leave Charter school leave Voluntary/extended military leave Leave of absence for the purpose of campaigning for political office Personal leave including maternity/ recovery and child care Paid Leaves * * * c. Sick Leave * * * iv. An employee requiring more than thirty (30) working days of paid leave for recovery may be required to submit medical evidence at reasonable intervals supporting the need for additional leave. * * * Sick leave claims shall be honored as submitted by the employee for personal illness, as well as illness or death of father, mother, brother, sister, husband, wife, child or other close relative or member of the employee's own household. Sick leave without pay may be granted for employees who have used all accumulated sick leave, but who would otherwise qualify for sick leave. The Superintendent may require a doctor's statement of verification of illness. A request to the Superintendent for a verification of claim may be initiated by the principal or supervisor. * * * Unpaid Leaves * * * e. Personal Leave -- An employee requesting short-term or long-term personal leave shall make written application to the supervisor, stating reasons for such leave. The Board shall satisfy itself in terms of the need of the requested leave. Personal leave may be used to extend a leave of absence due to sickness when that sickness has extended beyond all compensable leave for the duration of up to one (1) calendar year when supported by doctor's statements verifying the necessity of the extended leave. An employee requesting return to duty who has served efficiently and exhibited those qualities called for in the position held prior to such leave will be given every consideration for reemployment provided the conditions of employment have been met and the request is supported by a doctor's statement certifying that his physical condition is satisfactory to return to normal duties. * * * Article 17 of the NCF&O Contract, as noted in Article 7 of the contract, deals with the "[d]iscipline of [e]mployees." It provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee’s personnel file and shall not be used to the further detriment of the employee, unless there is another reasonably related act by that same employee within a twenty-four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee’s personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension without pay shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee’s personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable laws. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Article 18 of the NCF&O Contract describes the grievance procedure available to bargaining unit members who allege a "misapplication or misinterpretation of the agreement." The described procedure consists of an "informal level" and four formal "levels," the final one being "arbitration before an impartial arbitrator, using the Federal Mediation and Conciliation Services." Pursuant to Section 4B. of Article 18, "if NCF&O decides to withdraw its support of an alleged grievance, the individual may continue to process the claim on his/her own, so long as all costs are borne by that individual"; however, according to Section 4E. of Article 18, "[a]grievance, once [actually] withdrawn, may not be reopened without the mutual written agreement between the [School District] and [the] NCF&O." "[L]eave [w]ithout [p]ay" is the subject of Article 25 of the NCF&O Contract, which provides as follows: SECTION 1. Personal Leave of Absence Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent. An employee granted an unpaid leave of absence shall be returned to his/her former classification if the leave is less than ninety (90) days, notwithstanding the layoff provisions contained in this agreement. An employee granted a leave of absence and who wishes to return before the leave period has expired, may submit a request to return to the principal/department head. An employee granted a leave of absence in excess of ninety (90) days will be permitted to return to work provided there is an opening in the same job classification in the work unit. If the former position is not available, the employee, upon written request, shall be listed as an eligible applicant for a period of six (6) months. Group Life and Hospitalization Insurance coverage may be continued for a period equal to the authorized leave of absence, provided full premium payments, including the Board's payment, are kept current by the employee. SECTION 2. Return from Leave Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal.[3] This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent.4 Section 2 of Article 35 of NCF&O Contract protects employees from "[h]arassment." It provides as follows: No employee shall be subjected to or be part of: Unwelcome sexual advances, requests for sexual favors, offensive, lewd or suggestive comments. Also includes the creation of a hostile, intimidating, or offensive work environment. Verbal or physical abuse is submitted to by an employee. An adverse decision is made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. Verbal or physical abuse. An adverse decision shall not be made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. There came a time when Respondent claimed, in a Level One grievance filed under the NCF&O Contract, that he was a victim, at the hands of Ms. Boone, of the "[h]arassment" proscribed by Section 2 of Article 35 of the contract. The grievance was filed (with the support of NCF&O) on or about April 8, 2004, several weeks following an incident in which Ms. Boone "yell[ed]" at Respondent for returning "a little bit late[]" from a delivery run. It contained the following "[g]rievance [s]tatement" and description of the "[r]elief [s]ought": Grievance Statement: (Include Date of Occurrence) Mr. Ellis fe[e]ls that he is working in a hostile work environment. He had meeting with the Dept. Head to express his feelings. On March 31, the employee was issued a written reprimand when there has never been any discipline for the employee. Relief Sought: The reprimand is withdrawn from all personnel files. All intimidation of the employee to cease immediately. Ms. Boone, on behalf of the School District, responded to the grievance by providing Respondent with the following written "disposition": After careful consideration of all available information, it has been determined that there has not been a violation, misapplication, or misinterpretation of the collective bargaining procedures. The grievance was not pursued beyond Level One. Since March 16, 2004, Respondent had not been reporting to work, notwithstanding that he had not received authorization to be absent. On or about April 5, 2004, Respondent submitted a request for leave of absence without pay for the period from April 5, 2004, to July 5, 2004. The type of leave without pay he requested was personal leave. By letter dated April 8, 2004, Mr. Baron advised Respondent that Respondent's request was being denied. In his letter, Mr. Baron wrote: You were absent without approved leave on April 5, 2004, April 6, 2004, and April 8, 2004. On Monday, April 5, 2004, you reported your intended absences and requested personal leave of absence starting April 5, 2004 through July 5, 2004. Pursuant to Article 25, Section 1, of the Agreement between The School District of Palm Beach County and National Conference of Firem[e]n & Oilers, "Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent." Your request for personal unpaid leave is denied. You are directed to return to work on Monday, April 12, 2004. Continued unapproved absences will result in further disciplinary action up to and including termination. Respondent did not return to work on April 12, 2004, as directed. The matter of Respondent's unauthorized absences was then "turn[ed] . . . over to [the School District's] personnel [office]" to "deal with." The personnel office decided to ask the School Board to terminate Respondent's employment for his having been absent without authorization. Before the School Board took any action, Respondent submitted another request for leave of absence without pay. The type of leave without pay he requested this time was sick leave. On the request form, Respondent indicated that he wanted the leave period to begin on April 16, 2004, "but there was no end date" written in anywhere on the form. Without an "end date," the form could not be processed. Sherry Kleinman, a School District analyst assigned to the personnel office (whose job duties include processing "all the leaves of absence for School [District] employees"), telephoned Respondent and "asked him what end date he wanted" her to place on the form for him. During their telephone conversation, Ms. Kleinman and Respondent "agreed upon" a May 17, 2004, "end date." Ms. Kleinman inserted this "end date" in the appropriate space on the form and then completed processing Respondent's leave request. Respondent was granted leave without pay for the period starting April 16, 2004, and ending May 17, 2004. Moreover, the personnel office "pulled" its recommendation that the School Board terminate Respondent for his having been absent without authorization. Respondent did not report to work at any time following the expiration of his authorized leave on May 17, 2004, nor did he seek an extension of this leave. There has been no showing made that there were extenuating circumstances present preventing Respondent's timely return to work; nor has it been shown that the issue of whether such extenuating circumstances existed has ever been presented to the Superintendent for determination. Personnel office staff attempted to reach Respondent by telephone to encourage him to seek an extension of the authorized leave that had expired. These efforts were unsuccessful. Upon being advised of the situation by Ms. Kleinman, NCF&O business agent Carolyn Killings, who had helped Respondent in filing his "[h]arassment" grievance, offered to try to contact Respondent, but she too was unable to "reach him." By letter dated June 14, 2004, Ernie Camerino, the assistant director of the personnel office, advised Respondent of the following: You were recently notified by your supervisor of your failure to return to work. As a result of such action, Personnel is currently processing your involuntary resignation from employment with the School District. Please be advised that I will recommend at the July 21, 2004 meeting of the School Board of Palm Beach County, Florida, your involuntary resignation. Subsequent to the July 21, 2004 Board meeting you will have fifteen (15) days to file an appeal under Section 120.[6]8, Florida Statutes. Unless a timely request for an administrative hearing (DOAH) is made within fifteen (15) days stated herein pursuant to Section 120.569 and 120.57, Florida Statutes the District will consider this matter closed. This action is taken in accordance with Section 1001.42 and 1001.51, Florida Statutes. Failure to timely request an administrative hearing shall waive all rights to request a DOAH hearing on such matters and shall be subject only to appeal rights under Section 120.[6]8, Florida Statutes. You have a choice of filing a grievance or requesting a hearing before the Division of Administrative Hearings (DOAH). Questions regarding the appeals process should be referred to the District's Legal Department. If you find this letter inconsistent with the action taken above, you may contact Mr. Camerino immediately at . . . to resolve this matter prior to School Board Action. By letter dated July 8, 2004, Respondent informed the School District's legal department that he was "requesting an appeal" of Mr. Camerino's "involuntary resignation" recommendation. On August 23, 2004, the same day the Superintendent filed his Petition for Involuntary Resignation recommending that the School Board terminate Respondent's employment, the School District referred Respondent's appeal to DOAH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order terminating Respondent's employment based on his failure to return to work following the expiration of his leave without pay on May 17, 2004. DONE AND ENTERED this 14th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of February, 2005.
Findings Of Fact From July 1946 until his retirement from the state career service system on June 30, 1983, Petitioner was an employee of the Department of Labor and Employment Security or its predecessor agencies (the Florida Industrial Commission, the Department of Commerce, and the War Manpower Commission), hereinafter collectively referred to as the Department. The Department, at the time of Petitioner's initial employment, established and administered its own leave policies. Subsequently, the Florida Merit System was expanded to cover all state agencies, including the Department, and uniform personnel policies and practices, including the accumulation of annual leave, were established. Effective July 1, 1957 the accumulation of annual leave for employees of the Department, as with employees of all state agencies, was limited to 240 hours. Initially, Merit System leave regulations provided that leave accumulated by employees of agencies with existing leave regulations, such as the Department, would be credited to their accounts as of July 1, 1957, but any accumulated leave in excess of 240 hours would become void after December 31, 1959. At the behest of the Department, the deadline within which excess accumulated leave had to be utilized was extended to December 31, 1961. Essentially employees were afforded four and one-half years within which to utilize their excess accumulated annual leave or forfeit it. Upon his retirement June 30, 1983, Petitioner was paid for, and had computed as part of his Average Final compensation; the annual leave he had accumulated up to a maximum of 240 hours in accordance with Rule 22A-8.10, F.A.C. That rule, or its predecessor, has contained the same 240-hour limitation since December 31, 1961. Petitioner asserts that he had accumulated leave in excess of 240 hours on December 31, 1961. While the evidence does establish Petitioner had excess leave on that date, there was no competent evidence presented from which his actual leave balance could be established. The actual amount of Petitioner's excess leave is not, however, significant since any annual leave he had in excess of 240 hours was void after December 31, 1961. Notwithstanding the voiding of his excess annual leave, Petitioner asserts that his entitlement to such leave still exists because of certain assurances he received from his supervisors. According to Petitioner, he was unable to utilize his excess leave between July 1, 1957 and December 31, 1961, because he was on "special assignments" for the Department which precluded his absence from work. Consequently, Petitioner says, `his supervisors "assured" him that they would see to it that he "got his excess leave." It is worthy of note that the supervisors who purportedly gave such assurances have been dead for over a decade, that there exists no corroborating evidence of Petitioner's assertions, and that at no time during the ensuing 23 years did Petitioner raise any issue concerning, or attempt to use, the leave which had been forfeited. It is further worthy of note that while purportedly assured he would "get his excess leave," Petitioner received no assurance he would be paid for it upon retirement. It is unnecessary to decide whether such assurances were in fact given. The evidence is clear that the supervisors in question had no authority, real or apparent, to bind the State by such assurances. Further, any reliance Petitioner may have placed on such assurances would not have been reasonable, since such assurances were contrary to existing regulations.
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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent has been a permanent full-time employee of petitioner's for over 22 years and at the time of the alleged abandonment was employed as a Engineer Technician III in petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphreys' jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and respondent, the position of survey crew chief. Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work before the end of this 6 months leave of absence without pay. The record does not reflect when respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3). Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 25, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 petitioner placed respondent on unauthorized leave of absence without pay. On September 27, 1984 petitioner was advised by Roger Tanner, respondent's probation officer, that respondent had bean incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify respondent that he had been placed on unauthorized leave without pay on September 27, 1984 until October 4, 1984 when petitioner delivered to respondent a letter from Skinner advising him that he had abandoned his position with the petitioner. Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983; (3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984. The evidence reflects that respondent had a "drinking problem" of which petitioner was aware but did very little "counseling" with respondent in this regard. On October 1, 1984 Mr. Markham, Humphreys Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that respondent's "problem would be resolved in a few days" or at least "by the weekend." Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because respondent did not have a valid driver's license. Walter H. Skinner had been delegated authority to take this type action against respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that it be found that respondent did not abandon his position and resign from the Career Service as contemplated under Rules 22A-7.1O(2)(a) and 22A-8.O2, Florida Administrative Code and that respondent be reinstated to his position of Engineer Technician III as of September 27, 1984. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 May, 1985. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Donald K. Hudson, Esquire Post Office Box 948 Jasper, Florida 32052 Daniel C. Brown Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paul A. Pappas Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel 562 Hayden Burns Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Barbara Calhoun, Respondent, is a Career Service employee with permanent status. She has been employed by the Petitioner since approximately 1969 and is presently employed in the capacity of a Resident Lab Assistant (RLA). Mary Ellen Weaver, Nursing Director at Sunland Center at District VII, is in charge of the nurses and other staff personnel at the Sunland Center in Orlando. Mrs. Weaver testified that she approved initially the recommendation by Mrs. Calhoun's supervisor that she be suspended for a continued pattern of absenteeism which had been documented by three previous reprimands, the first of which occurred approximately September 16, 1976. The first reprimand was an oral reprimand of September 16, 1976, and was based on an excessive pattern of sick leave in conjunction with days off. The second one occurred on November 29, 1976, and was submitted by a Mrs. Renner, R.N. and the reviewing officer on that reprimand was Mrs. Graham, R.N. III. The third reprimand occurred on February 5, 1977, a written reprimand the basis therein was excessive absenteeism, with the reviewing officers being Mrs. Renner and Mrs. Graham. (See Petitioner's Exhibits Nos. 1, 2 and 3.) Documentary evidence introduced reveals that from February 11, 1976, to June 23, 1977, the Petitioner accumulated approximately 19 days of unscheduled absences with the majority of such absences occurring in conjunction with days off and most of which were leave without pay (LWOP) because during the Respondent's approximately eight year employment tenure, she had accumulated no annual or sick leave. (See Joint Exhibit 1.) Without going into a recitation of all of the numerous days in which the Respondent was absent, the following is illustrative. On February 11, 1977, Respondent called in sick which was also without pay because she had accrued no leave. The following day the Respondent called in sick and again this absence was without pay and unscheduled. On March 6, 1977, Respondent had a friend call to advise that she was sick with the flu and again a message was sent the following day, on March 7, 1977. On March 26 the Respondent called in sick which was before she was off for two days. On April 18 the Respondent again called in ill. On May 2 Respondent requested annual leave, which was granted. On May 3 the Respondent called in sick and obtained permission to use annual leave since there was no more sick leave accrued. On May 12 Respondent called in sick and again there was no annual leave accrued to cover the absence. The following day the Respondent called in sick, which was prior to her weekend off. On June 1, 1977, Respondent called in sick after being off on May 30 and May 31. On June 16, 1977, Respondent was off and used an annual leave day, which was unscheduled and without prior approval. On June 23 Respondent called in sick, which was unscheduled. It was at this juncture that Respondent's supervisor recommended a suspension, which was approved by Mrs. Weaver and ultimately sent to a Mr. Windsor for final approval. The Respondent offered no explanation to explain, refute or otherwise contradict the numerous absences nor did she offer any proof of any kind to establish that she was in fact sick in such a sporadic form which occurred in conjunction with her days off. 1/ In view of the above, the undersigned concludes that there is competent and substantial evidence to support the Petitioner's disciplinary action directed toward the Respondent.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended the personnel action of the Petitioner, Department of Health and Rehabilitative Services, be sustained. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978.
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto pursuant to Section 120.57(1), Florida Statutes. Respondent has been employed as a permanent full-time employee since March 7, 1980 with Petitioner's facility, Landmark Learning Center (hereafter, "Landmark") located in Opa-locka, Florida and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. The purpose of Landmark is to train, program, and modify the behavior of retarded clients so that they may realize their fullest potential for self care and independence. Ulysses Davis is the Superintendent of Landmark. Immediately below him in the chain of command is Deborah Wicks Kahn, Residential Services Director. Hers is a supervisory administrative position also over the entire facility. Within Respondent's unit, which is one of several units within Landmark, there are other supervisors between Respondent and Deborah Kahn. Approximately 1980, Respondent was convicted in federal criminal court of bank fraud but remained at liberty pending resolution of an appeal and various post-conviction relief procedures for reduction of a three-year sentence. Respondent has had a history of leaves of absence during his employment with Landmark. The longest hospitalization established by his medical records was from January 30, 1983 to May 6, 1983 at North Miami Hospital for approximately 96 days or three months; from September 18, 1983 to September 25, 1983 (approximately six days) he was again hospitalized at North Miami Hospital. At that time, ulcer disease was ruled out by Dr. Bertram P. Shapiro (Bell Composite Exhibit 7). These hospitalizations were known to Respondent's supervisors and co-workers and occurred during periods when leave had been authorized, although the nature of the type of leave (i.e., sick leave, annual leave, disability leave, leave without pay) was not established. Everyone at Landmark seems to have known that thereafter Respondent was on medication for his stomach and assumed or had been told by the Respondent that his problem was associated with bleeding ulcers. The usual procedure followed at Landmark requires that any leave of absence of one to two days may be approved by a lower level supervisor on an employee's bi-weekly time sheet. Leaves of absence in excess of one-two days require approval of at least Director Kahn. If the leave requested will be completed within the current two-week pay period, the bi-weekly time sheet may be used by the employee to make his leave request and approval is indicated on the time sheet itself. A time sheet is signed by Director Kahn or a lower level supervisor if the shorter leave is approved, and if it is disapproved, the word "disapproved" and the supervisor's or Director's signature is signed at the bottom. So that multiple time sheets will not be tied up by extended leave requests, a separate written request is required from the employee and a separate outside proof of need therefor must be attached to the employee's written request for all leave requests in excess of a two-week period. For instance, if the request is for extended educational leave, the employee's request must be made in writing with an attached verification of the program from the educational institution. If the request is for extended medical leave, the employee's request must be made in writing with an attached doctor's statement verifying the employee's need therefor. Superintendent Davis requires that his subordinate supervisors get his approval before they grant any extended leave request. In extended leave cases, a separate approval letter is typed, signed by Superintendent Davis and sent certified mail, return receipt requested, to the employee whose leave has been approved. Director Kahn testified she habitually would approve leave requests in increments of one, two and three months after getting guidance from Superintendent Davis or the personnel office. Shortly prior to October 17, 1983, Respondent requested a leave of absence for two months which Director Kahn denied due to an agency-wide survey (inspection). She wrote on the bottom of this request that Respondent would also need to get a supportive medical statement. When the survey concluded, Respondent approached Director Kahn about a leave of absence which she said she would approve if the Respondent provided a supporting medical statement. Director Kahn understood this to be a renewal of Respondent's request for either two or three months of medical or personal leave. Respondent states he understood this to be a request for one year of medical leave, specifically October 17, 1983 through October 17, 1984. Director Kahn again asked for a supporting medical statement. Director. Kahn left on vacation for three weeks immediately following this conversation. Respondent, in response to telephoned information from his lawyer, reported to Federal Prison Camp, Eglin Air Force Base, Florida, and on October 17 and 13, 1983 was processed in accord with federal prison procedures to begin serving his criminal sentence. Part of this process is a thorough medical examination (Bell Exhibit 6) and he thereafter received extensive treatment for his medical problems, including ulcers. After Director Kahn returned from three weeks' vacation, the person she left in charge in her office presented her with a medical statement on Dr. Bertram Shapiro's stationery, dated October 17, 1983, urging that Respondent be granted a one-year medical leave of absence (Bell Exhibit 3). The date this item was stamped into the Landmark personnel office is November 10, 1983. No formal written request of Respondent for one year's medical leave was received by Director Kahn, Superintendent Davis, or the Personnel Office. Despite the absence of a formal written request from Respondent for one year to correspond with Dr. Shapiro's statement dated October 17, 1983, a letter authorizing two months' leave of absence from October 19 through December 19, 1983 was sent by certified mail, return receipt requested, to Respondent at 2146 N.W. 61st Street, Miami, Florida 33142 (HRS Exhibit 1). This letter was signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Residential Services Director, Facility II. It states that Respondent's failure to report for duty December 20, 1983 would constitute unauthorized leave and three consecutive days of unauthorized leave would result in Respondent being deemed to have abandoned his position and to have resigned his position in accord with Section 22A-7.10(2)(a), Florida Administrative Code. Petitioner's November 17, 1993 letter was delivered November 25, 1983 to 2146 N.W. 61st Street, Miami, Florida 33142 and was signed for by Respondent's sister-in-law, Vesturee Brownlee (HRS Exhibit 2). This address continued to be the legal address of Respondent from October 17, 1983 at least through the date of the hearing. Respondent admitted intentionally not notifying Petitioner of any other address where he right be reached until mid-May 1984. Indeed, Respondent and his girlfriend, Ann White, a co-employee, worked diligently until mid-May 1984 to camouflage his criminal incarceration and exact location from everyone at Landmark. Further, this address appears as his legal address on all of his federal prison incarceration documents (Bell Exhibit 6). At hearing, Respondent denied that he received the November 17, 1983 letter but it is clear that he knew its contents because approximately December 19, 1983 Respondent telephoned Director Kahn at her home and requested an extension to a full year's leave dating from the doctor's statement dated October 17, 1984. Director Kahn said three months' leave might be authorized. Despite discussing his ulcer problems, no mention of jail or his actual whereabouts was made by Respondent. Although a written request and new doctor's statement was not submitted by Respondent, his oral telephone request to Director Kahn was acted upon. On January 20, 1984, a letter (HRS Exhibit 3) was sent by certified mail, return receipt requested, to Respondent at his last known address. This letter, signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Director, authorized leave from December 17, 1983 to Friday, April 27, 1984. Instructions were given that if Respondent could not report on Monday, April 30, 1984 at 8:00 a.m., he must, prior to that date, complete a blank leave request showing his anticipated date of return and submit it to "me". Since the letter was signed by two supervisors, I interpret its intent to be that the Respondent could have submitted his completed leave request to either Superintendent Davis or Director Kahn. Again, Respondent was instructed that failure to either report for work timely on April 30 or to submit a written request for extension would result in a determination of abandonment of his position pursuant to Section 22A- 7.10(2)(a), Florida Administrative Code. Petitioner's January 30, 1984 letter was delivered on February 8, 1984 to Respondent's last known address and was signed for by Rosa L. Bell, Respondent's mother (HRS Exhibit 4). Although at hearing Respondent denied that he received Petitioner's January 30, 1984 letter, it is clear that he knew the contents thereof because in at least four telephone conversations with Landmark employees, Ann White and Leah Black, Respondent discussed the concern over his medical condition and absence from the job which had been expressed to Ms. White and Ms. Black by Director Kahn and other Landmark employees. On April 30, 1984, Respondent again did not report to work nor did he complete and submit to anyone at Landmark a written leave request form. In excess of three consecutive days Passed without Petitioner receiving any communication from Respondent. Petitioner did not report to work at any time during this period because he was still involuntarily incarcerated in Lexington, Kentucky. On May 8, 1984, a letter (Bell Exhibit 1) was sent by certified mail, return receipt requested, to Respondent at his Miami address. This letter was signed by Superintendent Davis and by Leah F. Black FOR Director Kahn in Ms. Kahn's absence. This letter, designated a "warning of abandonment letter," states that Respondent's failure to report for work or otherwise make contact after April 27, 1984 had resulted in Respondent being placed on an unauthorized leave of absence and that unless Respondent contacted the signatories with a "reasonable and acceptable" excuse for the unauthorized absence since April 27, 1984 and/or reported for work by close of business on May 17, 1984, a determination of abandonment pursuant to Section 22A-7.10(2)(a), Florida Administrative Code, must be made. Respondent was specifically cautioned that a "response is vital to your continued employment." The letter provided Respondent the option of resigning if he sent a letter of resignation by May 17, 1984. This letter was delivered on May 11, 1984, to Respondent's Miami address. It was signed for by Rosa L. Bell, Respondent's mother (Bell Exhibit 1). At hearing Respondent denied that he received Petitioner's May 8, 1984 letter but it is clear that he knew its contents and import because he admittedly signed and sent a two page typed letter dated May 16, 1984 to Superintendent Davis. (Tr. 151) This letter was received in the Superintendent's office on May 21, 1984. (Bell Exhibit 2) This was four days after the requested due date of May 17, 1984 for any excuse. Respondent's May 16, 1984 letter informed his supervisor for the first time that Respondent was serving a federal sentence for bank fraud, that he was scheduled to be released June 30, 1984; that he felt he was not guilty of crime, that he was unaware of Director Kahn having her vacation during the time when Respondent requested his leave, that he did not confide his jail problem to Director Kahn because he did not trust her, that in December Director Kahn told him she did not receive the Respondent's one year leave request letter from Donna Bailey, that Respondent had been in touch with Ms. Leah Black since 1983 and recently hand informed Ms. Black of his present location due to rumors, that before leaving Landmark, Respondent requested a leave of absence of one year, that at that time Respondent had accumulated four months of accrued leave and requested four months leave with pay and the remainder as leave without pay, that Director Kahn told him she could not approve his leave request without a physician's statement and he had attached such a statement to his letter request before he left Landmark and gave it to Donna Bailey. Superintendent Davis and Director Kahn believed Respondent to be sick until receipt of his letter dated May 16, 1984. That date is the first date either had actual knowledge of his physicial location and that he was in jail. In Respondent's absence, his supervisors were required to hire temporary employees to fill his position as Behavior Program Specialist. Sometimes they were not able to hire any temporary fill-in personnel and this created additional work for other full-time employees in covering Respondent's caseload. Sometimes the temporary help they were able to hire were not of a comparable skill level with Respondent or someone who might have taken the job full-time. As long as Respondent was on a leave of absence they were unable to advertise for a skilled full-time replacement. This had a detrimental effect on Landmark's in-depth applied behavior modification program. Superintendent Davis determined that Respondent's admission of involuntary incarceration, even if coupled with institutional medical care, did not constitute a reasonable and acceptable excuse as requested in Petitioner's May 8, 1984 letter. This determination is consistent with Landmark's internal policy. Superintendent Davis has previously refused all employees' requests for extended leave for the purpose of serving involuntary jail time. He testified that he would not have granted any of Respondent's previous leave time nor any extensions thereof if the jail sentence had been known to him. His basis for this policy is that criminal sentences are detrimental to employees' functions as role models. He applied this policy to Respondent because Respondent's position as a Behavior Program Specialist requires intensive leadership and role modeling/programming of retarded clients. Superintendent Davis also considered the Respondent's failure to disclose his incarceration to be dishonest dealing with the agency. Superintendent Davis further determined that the date of his receipt of Respondent's May 16, 1984 letter was beyond the allotted time for such excuse. Respondent maintained that he was diagnosed early on the morning of October 17, 1983 by Dr. Shapiro as needing a year's ulcer treatment, applied for and got the leave of absence from Director Kahn some time between Noon and 2:00 P.M. that same day, and thereafter, between 4:30 - 5:00 P.M., he was telephoned by his lawyer to report that very day to federal prison in Eglin, Florida. Respondent says that he had a normal appointment with Dr. Shapiro at 10:45 A.M., October 17, 1983, and at that time received the statement indicating need for a year's leave of absence (Bell Exhibit 3), returned to Landmark, wrote out on a legal pad what was apparently an explanation to Director Kahn that he wanted to use 4 months of accumulated leave with pay (annual and sick leave combined) and to receive 6 months leave without pay to cover October 17, 1983 through October 17, 1984; that he then gave this to Donna Bailey to type, that Director Kahn signed her approval on the typed letter and he returned his letter and medical letter to Donna Bailey. Stephanie Green states that she was with Respondent at the doctor's office on October 17, 1983, and saw him give his typed letter request, the medical letter, and his timesheets to Donna Bailey. Ms. Green does not recall any approval at the bottom of Respondent's letter. Ann White, Respondent's girlfriend, supports some of this information but contradicts much by saying she saw Respondent's letter request at her home on a separate occasion and saw the doctor's letter before that date when hue showed it to her at Landmark. She then says that at the end of October 1983, she examined Respondent's personnel file and saw the Respondent's typed letter request with Director Kahn's approval written at the bottom with the medical letter. These witnesses may have seen another earlier leave request, but timesheets and approval on the bottom of an employee's request would be inappropriate for extended leave request and approval. Director Kahn absolutely denies giving a year's approval in writing at any time and denies ever receiving a typed letter request for one year signed by Respondent. Her secretary was not Donna Bailey but was Sandra Williams. Based upon observation of the candor and demeanor of the witnesses testifying and their credibility or lack thereof, I choose to believe Director Kahn. Independent of the credibility of the live testimony, I also find supportive of Ms. Kahn's testimony the Respondent's admission that he gave his documents, if they were given, to someone not her secretary. Respondent further stated that at that time before his lawyer's call he intended a vacation to get away from it all instead of immediate medical care. Also clearly supportive of Ms. Kahn's testimony is Bell's Exhibit 2 wherein Respondent admits Director Kahn told him in their December phone conversation that she did not receive his letter request for a year's leave and that he was not approved for a year but might be approved for an additional three months after the original December 19, 1953 date. On June 6, 1984, Superintendent Davis sent a letter, (HRS Exhibit 5), certified mail, return receipt requested, to Respondent Bell at Antaeus Unit, Post Office Box 2000, Lexington, Kentucky, 40511. This was the return address on the envelope of Respondent's May 16, 1984 letter. At hearing, Respondent denied receipt of this letter but was admittedly incarcerated by the federal government at that location at that time and did not return to Miami until June 17, 1984. Petitioner's June 6, 1984 letter was received at that address on June 11, 1984, and was signed for by "D.D. St (illegible)" (HRS Exhibit 5). The undersigned finds that Respondent did receive on that date Petitioner's June 6, 1984 letter which stated that Respondent's failure to report on April 30, 1984, and thereafter was now considered abandonment of his position under Section 22A- 7.10 (2)(a) and that he was deemed to have resigned as of the date the letter was received or date it was returned to Petitioner if that occurred. The undersigned is not impressed by Respondent's analysis of Bell Exhibit 5. This item was found among Petitioner's business records, in Respondent's Personnel file. It is a handwritten, undated memorandum which reads in one handwriting "N. Bell went out on med. leave but last med slip is 10/83. Needs one every 30 days even the leave is for year-they keep jumping back and forth on AL to SL, etc." To which, another's hand has replied, "notified Bill Miller 2/13/84 will send in." At best, its message is ambiguous and one obvious interpretation is that monthly doctor's statements would be required by Petitioner from Respondent although the payroll employees already had the medical statement dated October 17, 1983 specifying one year, and that some confusion existed as to how to debit the Respondent's four months accumulated annual and sick leave during his absence. Under the foregoing findings of fact, Respondent abandoned his position upon his unexcused absence for three consecutive days after April 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law set forth herein, it is RECOMMENDED that, Respondent having been absent without approval for 3 consecutive workdays he be deemed to have abandoned the position of Behavior Program Specialist and to have resigned from the Career Service effective Jun 6, 1984. DONE AND ORDERED this 1st day of February, 1985, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of February, 1985. COPIES FURNISHED: Sharon Langer, Esquire 255 Alhambra Circle Suite 312 Coral Gables, Florida 33134 John Abramson, Esquire 799 Brickell Avenue Suite 800 Brickell Center Miami, Florida 33131 Gilda Lambert Secretary, Dept. of Administration 435 Carlton Building Tallahassee, Florida 32301 David H. Pingree Secretary, Dept. of Health & Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Michael J. Rodgers abandoned his position and resigned from the career service within the contemplation of Rule 22A-7.010(2), Florida Administrative Code?
Findings Of Fact V. G. "Jerry" Collins, a DOT maintenance engineer for 14 years, was Michael Rodgers' supervisor in June of 1987, when DOT employed the latter as a highway maintenance technician II at its Perry yard. While recovering from a job-related injury, Mr. Rodgers had been assigned to pump gas there. After Mr. Rodgers began work for DOT, he was furnished a copy of DOT's employee handbook. DOT's Exhibit No. 6. On page 12, the handbook states: If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time. This will allow the Department to effectively schedule your work assignments on a daily basis. When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed. If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work. If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time. If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence. Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given. DOT's Exhibit No. 4. On page 43, the handbook discusses the abandonment rule: JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. DOT's Exhibit No. 3. Mr. Rodgers signed a form acknowledging receipt of the handbook on December 16, 1983. DOT's Exhibit No. 5. At about four on the afternoon of Monday, June 22, 1987, Mr. Collins asked Mr. Rodgers when his next doctor's appointment was. Mr. Rodgers replied, "I need to see him tomorrow." (T. 35) He did not "state that it would be for illness" (T. 53) or specify the reason for the visit. (T. 74) Believing Mr. Rodgers had an appointment to see his doctor the following day, Mr. Collins said, "That's fine, when you come back to work bring a doctor's certificate." (T. 17) But the leave Mr. Collins authorized Mr. Rodgers to take was "not a leave of absence for illness." (T. 53) On Tuesday, June 23, 1987, A DOT employee marked Mr. Rodgers absent for the day on "authorized leave" (T. 18) without pay. Mr. Rodgers, who lives about 60 miles from Perry, travelled to Dr. Hauser's office in Old Town on Tuesday morning "to sit down and talk with him about some information [he] needed," (T. 36-37) concerning an automobile accident's forensic sequelae. He was told to return later that day, because the doctor could not see him immediately. Although he returned at noon, and on four different occasions that afternoon, the doctor gave other patients priority. Mr. Rodgers then telephoned DOT's Perry yard, and "gave the secretary . . . the message that [he] was unable to see the doctor and . . . would still need to be off . . . to attempt to see him again on Wednesday the 24th." (T. 24, 38) When Mr. Collins learned of Mr. Rodgers' conversation with the secretary, he asked William S. Clark to telephone Dr. Hauser's office, at the Tri-County Medical Center. Betty in Dr. Hauser's office told Mr. Clark that, although Mr. Rodgers had in fact visited the office, he had no appointment. On Wednesday morning, DOT's attendance records were marked to reflect that Mr. Rodgers was absent on authorized leave without pay, although Mr. Collins testified that leave never was authorized for that day. (T. 19, 80) Later Wednesday, Mr. Collins, under the impression that Mr. Rodgers "had lied about going to the doctor for a doctor's appointment," (T. 82) ordered that the attendance records for Tuesday and Wednesday be altered to show that Mr. Rodgers' leave was not authorized on those days. (T. 19, 80, 82) On the afternoon of Wednesday the 24th, Mr. Rodgers, who had inquired at the office about Dr. Hauser's availability on two occasions earlier in the day, saw Dr. Hauser, discussed effects of the automobile accident, and made an appointment for the following day to have his back examined. (T. 38) On Thursday, the 25th, he kept the appointment, and obtained a slip of paper attesting the fact. But, in Mr. Collins' view, Mr. Rodgers' employment had ended before he saw the doctor that day: "He was considered to have abandoned his position by 9:00 a.m. Thursday morning since he had not called in [after Tuesday afternoon.]" (T. 79) When Mr. Rodgers returned to work on Friday, June 26, 1987, Mr. Collins read, then returned, the note from the doctor, informed Mr. Rodgers of the changes in the attendance records, and advised him that his employment had terminated.
Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate Michael J. Rodgers as a highway maintenance technician II at its Perry yard, with back pay since June 26, 1987. DONE and ENTERED this 27th day of May, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 27th day of May, 1988. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Aaron A. Green, Esquire P. O. Box 1265 Gainesville, Florida 32602 Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether or not the School Board of Madison County, Florida may terminate Respondent as one convicted of a crime of mortal turpitude in 1988 or 1989:, pursuant to Section 231.36(4)(c) F.S. [The Petition for Discharge also alleges that a "pattern" of issuing worthless checks over a period of years has been engaged in by Respondent but the "prayer" or charging portion of the Petition is silent as to whether the Petitioner intends this allegation to constitute a specific, separate charge.] Whether or not the School Board of Madison County, Florida may, pursuant to Section 231.44 F.S., terminate Respondent for absence without leave during the period he was incarcerated for passing worthless bank checks.
Findings Of Fact Petitioner, Gene Stokes, is the duly elected Superintendent of Schools of Madison County, Florida. Respondent, Doctor Randall Choice, III, is a member of the instructional staff of the district School Board of Madison County, Florida, employed by the Board under a continuing contract entered into on May 7, 1981. The Respondent was charged in an information filed by the State Attorney of the Third Judicial Circuit on June 27, 1988 with passing a worthless check, the payee being the Madison Inn, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $106.00. There were not sufficient funds in the account to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment. The Respondent was charged in an information filed by the state attorney of the Third Judicial Circuit on September 12, 1988 with passing a worthless check, the payee being Perry Coca Cola, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $61.60. There were not sufficient funds in the account of the Respondent to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment. The check given to the Madison Inn was for lodging and the check to Perry Coca Cola was for products which the Respondent had received. Neither transaction had anything to do with Respondent's professional activities as a school teacher. The Respondent appeared before the Honorable Wetzel Blair, County Judge of Madison County, Florida, on November 2, 1988 and entered a plea of "guilty" to the two informations noted above. The court at that time gave the Respondent the opportunity to make restitution on the two checks and to pay court costs of $46.00 within 30 days. If the Respondent made the restitution and paid the court costs within the prescribed time, the court agreed to withhold adjudication. The Respondent executed the offer of a plea of "guilty", but nonetheless, the court set the matter for trial on December 2, 1988 upon a plea of "not guilty." This "Order Setting Trial" was signed by the judge on November 2, 1988, and stated: Order setting trial date upon the above and foregoing plea of not guilty, trial of this case is set for non-jury trial, on `Friday, December 2, 1988 at 9:00 a.m. [Tr-51-72]. The Respondent did not pay the restitution or court costs within the 30-day period as directed by the Court, and, accordingly, the Respondent was ordered to appear before the Court on January 4, 1989. At that time, the court entered another order reciting that the Respondent had entered a plea of "guilty" on November 2, 1988 and had been directed to pay restitution for the checks in the cases within 30 days. The latter order further recited the fact that the Respondent had paid the restitution, but not within the stipulated time, and that Respondent was therefore sentenced to 30 days in the Madison County Jail. Upon the testimony of Madison County Judge Wetzel Blair, it is found that as of the date of formal administrative hearing, September 20, 1989, Respondent had not been adjudicated guilty of the crime of passing a worthless bank check, even though he was incarcerated in the Madison County Jail from January 4, 1989 until about 4:00 p.m. on January 23, 1989. (TR- 78) On January 4, 1989, the Respondent teacher immediately notified his principal, Mrs. Colleen Campbell, by telephone that he was in jail and that he needed to be granted leave for the period he would be incarcerated, predicted at 30 days. She informed Respondent that he had six days of accrued leave due him and agreed to sign she form requesting/approving that period of leave. She also informed Superintendent Stokes that Respondent was in jail, but she provided no written request for leave for Respondent beyond tee six days to which he was entitled. The superintendent did not know of Respondent's oral request for additional leave until Respondent was released from jail. The principal and superintendent have the authority to approve personal leave up to a teacher's accrued limit, but if insufficient personal leave time has been accumulated, the school board must approve the overage. It is unclear from the record whether preprinted forms are provided for this purpose, but apparently such requests must be made in writing. It is also unclear whether such requests are always submitted directly to the school board or if principals and the superintendent act as conduits for such requests to the school board. However, such written leave requests are usually taken up at each monthly school board meeting, which is often "after the fact" of the requesting teacher's physical absence. Sometimes, the applicant appears at the school board meeting in person. Respondent was released from jail or January 23, 1989 at 4:00 p.m.. On January 24, 1989, the Respondent reported personally to the superintendent, reported his release from jail, and sought to determine his leave status, At that time, the superintendent informed the Respondent that the superintendent was suspending the Respondent with pay until the next school board meeting. Also, the superintendent then informed the Respondent that the superintendent was reporting Respondent's conduct to the Education Practices Commission. The superintendent did then specifically inform the Respondent that he had been absent without leave, as it was presumed the Respondent had been incarcerated for passing worthless bank checks, and that was the thrust of their conversation. At all times during his incarceration of 19 days, the Respondent believed that he had taken the necessary steps to obtain authorized leave, and he assumed, without any affirmative action by the principal, superintendent, or school board that he had been approved for leave with pay up to his accrued six days and for leave without pay for the remainder of the incarceration period. Respondent was incarcerated January 5-23, 1989, inclusive. Resort to a calendar reveals that only 12 of Respondent's 19-day incarceration were week days or work days (One was Martin Luther King's Birthday Holiday.) Respondent was, in fact, approved for his six accrued leave days. Therefore, the balance that Respondent was actually absent without leave amounted to only six days. Neither Superintendent Stokes nor the school board, as a collegiate body, approved Respondent's oral request for leave without pay during the six days in question. Indeed, the school board did not convene until February, when, at the superintendent's request, it altered his suspension of Respondent with pay to a suspension without play. Respondent did not file any after-the-fact written request for leave without pay and present it to the school board when it met in February 1989 to consider the suspension request, although it may be inferred that the school board's suspension of Respondent had the retroactive effect of denying his oral leave request. The citizens of Madison County believe that the passing of a worthless check is morally wrong. The incarceration of the Respondent was not reported in any of the newspapers in the circulation area. There is evidence in the record that Respondent's absence created administrative problems for the superintendent and school board and interfered with the orderly education of students, although most of this disorder relates to the period after the Respondent's suspension, not during his short incarceration period.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that: The school Board of Madison County enter a Final Order finding that Respondent has not violated Section 231.36(4)(c) F.S., in that he has not been convicted of a crime of moral turpitude, and that Respondent has violated Section 231.44 F.S., by being willfully absent from duty without leave, and suspending him without pay from the first day of his absence without leave until the conclusion of the current school year. DONE and ENTERED this 2nd day of January 1990 at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1445 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 2, 6 and 7 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate and/or unnecessary-material. is rejected as a conclusion of law, not a finding of fact. Further, this has not been established as set forth in FOF 17- 19. is rejected as mostly legal argument. Otherwise the record differs as set out in FOF 6-10. is rejected as a conclusion of law, not a finding of fact. Further, this has not been established as set forth in FOF 6-10 and COL 4. 8 is rejected as a conclusion of law, not a finding of fact. Respondent's PFOF: 1-16 and 18-24 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate, unnecessary, or cumulative material. 17 is rejected because it is contrary to the record as stated. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 John R. Weed, P.A. 605 South Jefferson Street Perry, Florida 32347 Gene Stokes, Superintendent Madison County Schools 213 North Duval Madison, Florida 32340
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 =================================================================
