The Issue The issue is whether Parallon Enterprises LLC-HSC Orange Park (“Parallon”) committed an unlawful employment practice against Tina Gainey by subjecting her to disparate treatment based on her national origin.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Parties Parallon is a business based in Orange Park, Florida, that contracts with 22 hospitals to provide health information management (“HIM”) services. HIM is a term used to describe the process by which a health care facility secures and maintains a patient’s medical record from admittance to discharge. Parallon’s main purpose is to ensure that a patient’s medical record is complete and accurate upon discharge. Rather than employing nurses, physicians, or other providers of direct patient care, Parallon employs the hospital staff members involved with HIM operations. Ms. Gainey is Hispanic and began working for Parallon in April of 2011 as a health information technician at the Twin Cities Hospital in Niceville, Florida. Ms. Gainey has held the position of health information technician during her entire tenure at Parallon. Ms. Gainey works the night shift and is usually the only HIM employee present at that time. HIM work during the night shift is less complex than HIM work during the day. The nighttime work involves gathering the records of discharged patients, ensuring that all of those records can be traced to a particular patient, and preparing those records for delivery to a document imaging center. Upon beginning her employment with Parallon, Ms. Gainey had high hopes of enjoying a long tenure there. Because she was told that a degree in the HIM field would enable her to advance within Parallon, Ms. Gainey geared her education toward a specialization in HIM. The HIM Director Position at Twin Cities Hospital Opens Ms. Gainey’s previous supervisor, the HIM Director at Twin Cities Hospital, relocated to a different position in approximately March of 2016. A HIM Director with Parallon has a great deal of responsibility. In addition to being a supervisor and responsible for every medical record in a hospital, a HIM Director investigates every unauthorized release of protected health information. Ms. Gainey was interested in the HIM Director position and communicated her interest to Lisa Terrell. Ms. Terrell is one of Parallon’s HIM Regional Directors and oversees Parallon’s operations at eight health care facilities in Florida, including Twin Cities Hospital. Ms. Terrell interviews qualified candidates for vacant HIM Director positions and recommends which candidates will be interviewed by Parallon’s upper management. Ms. Terrell told Mr. Gainey to send her the necessary documentation and Ms. Terrell would then forward that documentation to the appropriate person. Ms. Gainey followed Ms. Terrell’s instructions and provided her with the necessary documentation, an internal transfer form and a resume, via an e-mail transmitted on May 4, 2016. On May 4, 2016, Ms. Terrell forwarded Ms. Gainey’s e-mail to Kimberly Baker, a human resource generalist at Parallon’s headquarters in Orange Park during the time in question. Ms. Baker did not account for that e-mail by adding Ms. Gainey to the list of applicants for the HIM Director position at Twin Cities Hospital. Ms. Baker should have recognized this e-mail as an application for the open HIM Director position because the subject line read “FW: Application for HIM Director position.” Moreover, the line below the subject line indicates two files were attached to the e-mail. Those files were named “Internal Transfer Form rev 9.3.14.doc” and “Tina Gainey Management Resume 2016.docx.” Ms. Baker can only speculate as to why she failed to account for Ms. Gainey’s application. Ms. Baker was on vacation in May of 2016, and she left Parallon at the end of that month. Thus, it is possible that Ms. Terrell’s e-mail was overlooked in a mass of e-mails that accumulated in Ms. Baker’s in-box while she was gone. Also, Ms. Gainey did not follow the formal process established by Parallon for existing Parallon employees to apply for transfers to open positions. Parallon requires existing employees to apply for open positions by transmitting an e-mail to a particular human resource employee such as Ms. Baker. An internal transfer form and the employee’s resume should be attached to the e-mail. That requirement serves multiple purposes. First, Parallon’s human resources department is able to verify that an application is complete. Then, the human resources department screens a particular applicant to ensure that he or she is eligible to apply for the position in question. Parallon also requires that applications be sent to a particular human resources employee because the employee responsible for managing the process for filling a particular opening must track which applicants are interviewed and which receive offers. If the human resources department finds that a particular applicant is eligible, then the human resources department notifies the hiring director that an internal candidate has applied for the position in question. A list of open positions within Parallon on March 29, 2016, indicates that existing employees should have transmitted an e-mail and the required attachments to Ms. Baker. Ms. Baker believes that she would have been more likely to have added Ms. Gainey to the list of applicants for the HIM Director position if Ms. Gainey had followed the established procedure. Nevertheless, Ms. Baker should have recognized Ms. Terrell’s e-mail as an application for the open HIM Director position. Parallon Offers the HIM Director Position to Karen Truelove Karen Truelove was employed by Parallon and working at the Fort Walton Beach Medical Center (“FWB Medical Center”) in Fort Walton Beach, Florida, in May of 2016. Ms. Truelove was also interested in the HIM Director position at Twin Cities Hospital. She transmitted an e-mail to Ms. Baker on March 30, 2016, with an internal transfer form and her resume attached thereto. Ms. Truelove has over 20 years of experience in the HIM field. From March of 1996 through December of 2000, Ms. Truelove worked for Contra Costa County Health Services in Martinez, California, where she: (a) developed and implemented policies and procedures for medical record maintenance; (b) worked with outlying county medical clinics to ensure proper medical record procedures; and (c) completed and processed workers’ compensation, state disability, social security, and private insurance forms. From January of 2001 to October of 2001, Ms. Truelove worked at the Oasis Sports Medical Group in San Diego, California, where she: (a) prepared charts for daily outpatient visits; (b) requested MRIs, EMGs, and medical records; and (c) proofread medical record dictation. Ms. Truelove was next employed from April of 2002 through July of 2003 at the Rehabilitation Hospital of the Pacific in Hawaii, where she conducted insurance verifications, processed referrals, and scheduled patients. Ms. Truelove’s next position was based at the Queens Medical Center in Honolulu, Hawaii, from July of 2003 through December of 2004, where she reviewed discharged patient medical records for completeness and accuracy. Ms. Truelove has worked for Parallon at the FWB Medical Center since February of 2005. She began her employment with Parallon as an HIM Operations Supervisor for the evening shift. In that position, Ms. Truelove was responsible for: (a) staffing the evening shift; (b) ensuring that the evening shift met productivity and quality goals; (c) preparing charts; and (d) reviewing charts for completeness and accuracy. Ms. Truelove held the HIM Operations Supervisor position until February 21, 2006. She then became the Lead HIM Technician at the FWB Medical Center for issues pertaining to incomplete medical records and patient charts. At some point in 2007, Ms. Truelove became a tumor registrar at FWB Medical Center. A tumor registrar analyzes patient charts for cancer diagnoses. The information is then reported to the American College of Surgeons so that national treatment guidelines for cancer can be developed. In order to hold this position, Ms. Truelove earned a certification from the National Cancer Registrar’s Association. In addition to working full-time, Ms. Truelove is currently pursuing a two-year degree in HIM and hopes to eventually take an examination in order to become a registered health information technician. Because she had visited the FWB Medical Center for department meetings, Ms. Terrell already knew Ms. Truelove prior to her application for the HIM Director position and had a very high opinion of her work. Ms. Truelove’s direct supervisor at the FWB Medical Center gave Ms. Truelove a strong recommendation. As a result, Ms. Terrell considered a face-to-face interview with Ms. Truelove to be unnecessary and interviewed her over the phone on April 17 or 18, 2016. Afterwards, Ms. Terrell recommended that Ms. Truelove be interviewed by Parallon’s upper management. Even if Ms. Gainey’s application had been processed by Ms. Baker, Ms. Terrell would have considered Ms. Truelove to be a better candidate for the HIM Director position. Parallon’s Chief Executive and Chief Operating Officers then interviewed Ms. Truelove. Ultimately, Parallon offered the HIM Director position to Ms. Truelove on or about May 17, 2016, and she has held that position since June of 2016. Because she is much further along in her career and has more than twice as much experience with medical records, Ms. Truelove would have almost certainly been offered the job even if Ms. Gainey’s application had been processed by Ms. Baker. With regard to hiring and/or promotional practices, there is no persuasive evidence to support a finding that Parallon treats similarly situated, non-Hispanic employees more favorably than Hispanic employees, such as Ms. Gainey. Ms. Gainey Requests Training On Friday, May 20, 2016, Ms. Gainey sent an e-mail to Ms. Baker inquiring about the HIM Director position: Hi Kimberly, I have not heard back from Lisa Terrell regarding the HIM Director position at Twin Cities in Niceville. I sent her my transfer form and resume information back on May 2, and wanted to make sure that you had received this as well. Please contact me as soon as possible. Thank you. Tina M. Gainey Ms. Baker responded on May 23, 2016, with the following e-mail: Tina, These always need to be sent to HR for consideration and processing. I can see if Lisa receive[d] it, but unfortunately, they have already selected a candidate for an offer. Ms. Gainey then spoke to Ms. Terrell about receiving training so that she could advance beyond her nighttime technician position. Parallon has offered training to Ms. Gainey so that she could advance into a daytime position. However, given that her nighttime shift ends at 1:30 a.m., it is unclear whether the training has been offered at a time during which it would be reasonable to expect that Ms. Gainey would be able to take advantage of that training opportunity. There was no persuasive evidence indicating that any other Parallon employees were treated more favorably than Ms. Gainey with regard to training opportunities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Tina Gainey’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 5th day of March, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2018.
The Issue Whether the Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?
Findings Of Fact Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B): 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. The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A). In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987. Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be treated as having abandoned his position with the Department because of his unauthorized absence. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department. The Department received a letter on November 25, 1987, requesting a formal administrative hearing. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of Administration concluding that Kenneth M. Watson abandoned his career service position with the Department. DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989. APPENDIX Case Number 88-0798 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2-3 4. 4-5 5. 6 7. 7 11. 8 13. 9 11-15. 10 16. Hereby accepted. See 17. 13 13. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989. Hereby accepted. 16 18. 17-18 2. 19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-6. 2 7. 3 9. 4 11. 5 12. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16. Hereby accepted. Not supported by the weight of the evidence or irrelevant in this de novo proceeding. Not supported by the weight of the evidence or argument. See 20. Not supported by the weight of the evidence. Hereby accepted. Irrelevant in this de novo proceeding. COPIES FURNISHED: Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the employment of Respondent, a school teacher, should be terminated based on the allegations of job abandonment and/or insubordination set forth in the More Definite Statement of Charges filed December 15, 2005.
Findings Of Fact Petitioner has employed Respondent as a school teacher since the school year 1998-99. Respondent’s assigned school has been Nova Middle School (Nova) since the 2000-01 school year. At all times relevant to this proceeding, Petitioner was certified to teach in the designated field of "elementary education." That certification permitted Respondent to teach kindergarten through sixth grade. At all times relevant to this proceeding, Respondent’s employment was subject to the provisions of the collective bargaining agreement (CBA) between Petitioner and the Broward Teachers Union (BTU). At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all public schools within the school district of Broward County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Dr. Ricardo Garcia was the principal of Nova for the 2004-05 and 2005-06 school years. During the 2004-05 school year, Respondent began to perceive that he was having problems with Dr. Garcia1. August 2, 2005, was the first day of the 2005-06 school year for teachers. August 2-5 were teacher planning days with the following Monday (August 8) being the first day of the school year for students. Teachers who will not be at work on a particular school day are instructed to call in to the school office or to a computerized service (called Sub Central) so that the school can take appropriate action to prepare for the teacher's absence, such as obtaining a substitute teacher. Respondent did not report for work at any time during the 2005-06 school year. On August 5, 2005, Mr. Garcia wrote to Respondent the following letter2 that accurately states the facts recited therein: The first day to report to work for the 2005-2006 school year was August 2, 2005 at 8:00 a.m. At 5:12 a.m. on August 2nd you called in sick to Sub Central. On August 3rd, you called in sick to Sub Central at 6:39 a.m., and on August 4th, you called in sick to Sub Central at 7:35 a.m. Today, Friday, August 5th after my office manager checked the Sub Central database, I was informed that you did not call in today, and you also did not report for work. If you are aware that you will be absent for additional days, please inform my office at your earliest. If you need to request a medical leave, contact the Leaves Department to assist you in this matter. Because I have not received any communication from you for your absence today, disciplinary action will be taken if I do not hear from you by August 10th, 2005. The letter of August 5, 2005, was mailed by certified mail and received by Respondent. The address used for all correspondence between Dr. Garcia and Respondent was to the address Respondent had on file with Nova, which was also the address Respondent gave out to the public. That address was to a residence in Boca Raton. An acquaintance of the Respondent lived at that Boca Raton residence. That acquaintance would typically call Respondent when mail came to the Boca Raton address for Respondent. Respondent actually lived at an address in Fort Lauderdale. Respondent used this unusual arrangement for all of his mail, not just mail dealing with school matters. In response to the August 5 letter, Respondent called the principal's office at Nova on August 8 and spoke to a staff person.3 During that conversation, Respondent represented to the staff person that he wanted a leave of absence and that he would file the requisite paperwork by August 10, 2005. On August 8, 2005, Respondent went to Petitioner's Leaves Department and picked up a packet that contained blank leave application forms. The packet also contained a form for his treating physician to fill out. Also on August 8, 2005, Respondent went to Dr. Myers' office and asked him to complete the medical form. Dr. Myers complied with that request the same day. Respondent called to report his intended absence for each workday during the week August 8-12, 2005. Respondent placed the various calls to either Sub Central or Nova. On August 15, 2005, Respondent called Nova and spoke to Ms. Daniel, who worked as a bookkeeper. Prior to that call, Dr. Garcia had instructed his staff that he wanted to talk with Respondent. He further instructed the staff that he wanted Respondent to talk to Ms. Morales if he was not available. When Respondent called on August 15, Ms. Daniel asked Respondent to speak with Dr. Garcia or Ms. Morales. Respondent thought it unnecessary to speak to either Dr. Garcia or Ms. Morales and declined to do so. Respondent’s last day of accrued sick leave expired on August 18. On August 18, 2005, Dr. Garcia wrote Respondent a second letter which was mailed by certified mail to the same address as the August 5 letter. That letter was not received by Respondent prior to the institution of these proceedings. The August 18 letter was as follows: This is a follow-up to my letter dated August 5, 2005. As of today's date, you have not reported to work for the 2005-2006 school year. You called Nova Middle School on August 8th after receipt of the August 5 letter and spoke to Mrs. Morales, Office Manager. You stated to her that you would submit appropriate paperwork to request a leave of absence no later than Wednesday, August 10th. I did not receive any paperwork or any physician's note either by August 10th to date. On Monday, August 15th, you called the front office of Nova Middle School and notified Mrs. Daniels, Bookkeeper, that you wanted to take an unpaid sick leave until Wednesday, August 17th. Mrs. Daniels referred you to talk to Mrs. Morales or me, and you declined to do so. Please be advised that you have the right to use any paid leave for sick purposes before a leave of absence takes effect, according to the Collective Bargaining Agreement, Article 23(S)(9). Because you have failed to inform my office in writing of any medical illness that is supported by a licensed physician and you have not provided, to date, any request for an unpaid medical leave of absence, I must move forward with this matter to ensure that the students of Nova Middle School are not further adversely impacted by your absence in the classroom. As a result, I am requesting that you notify my office, in writing, no later than Tuesday, August 23, 2005, of your return to work date. In addition, I am requesting that you send by mail documentation from a licensed physician to support your illness since August 2, 2005. If I do not receive your response by the date as mentioned above, I must recommend that the School Board consider you for termination due to job abandonment. Please govern yourself accordingly. On August 19, 2005, Respondent’s two leave applications simultaneously reached Dr. Garcia’s office through Petitioner’s internal mail service called the Pony System. Respondent deposited the applications in the Pony System at another school on or about August 17 and it took approximately two days for the applications to reach Dr. Garcia. The first leave application to be discussed is Respondent’s application for leave pursuant to the Family Leave/Medical Leave Act (FMLA). Under defined circumstances, including his own illness, Respondent was entitled to up to 60 days of FMLA leave with his position assured upon the expiration of his leave. Respondent stated on his application that the reason for the FMLA leave was for his illness, which he described as “work-related stress, anxiety . . .”. Respondent requested a total of 60 days of FMLA leave beginning August 2 and ending October 27. The FLMA leave form contained the following direction: All requests for medical leave due to your illness or the illness of a family member must include the completed attached “Certification of Health Care Provider” form[4]. The FMLA also contained a routing instruction directing the school to forward the application and the medical certification to the Leaves Department. Respondent did not attach the completed Certification of Health Care Provider form or any other medical documentation to his FMLA leave application. Respondent’s FMLA leave application was incomplete without the Certification of Health Care Provider or other suitable medical documentation. Respondent knew or should have known that the application for FMLA leave was incomplete without appropriate medical documentation. Respondent’s second application was for a Board Approved Personal Leave of Absence (BAPLA). The reason given for the request was also “work-related stress, anxiety ...” Pursuant to the terms of the CBA between Petitioner and BTU, Respondent had the right to go on an unpaid leave of absence for personal reasons of up to two years' duration. His teaching position would not be assured upon the expiration of that leave, but he could be rehired, depending upon job openings. Respondent’s BAPLA application was incomplete because Respondent did not fill out the part of the form identifying the start date of the requested leave. The form contained the following, which Respondent left blank following the word “on”: I wish to request a leave of absence for the 2005-06 school year effective at the close of work on: 5 Dr. Garcia routed the two applications to the Leaves Department the same day he received them (August 19). On August 30, 2005, Dr. Garcia wrote a letter to Respondent and mailed it to the Boca Raton address. Respondent did not receive Dr. Garcia’s letter of August 30, 2005, prior to the institution of these proceedings. Dr. Garcia advised Respondent that medical documentation was necessary for FMLA leave and set a deadline of September 6, 2005, for Respondent to submit that documentation. Dr. Garcia incorrectly advised Respondent as to the availability of BAPLA6. Debra Knaub, an employee of the Leaves Department, processed Respondent’s applications after receiving them from Dr. Garcia. Ms. Knaub could not process the FMLA leave application because of the missing medical documentation. After she received Respondent’s two applications from Dr. Garcia, Ms. Knaub called on at least two occasions the telephone number that Respondent had provided. The telephone number was to Respondent’s cell phone. On each occasion, Ms. Knaub left Respondent a voice message requesting that Respondent return her call. Ms. Knaub was attempting to obtain Respondent’s medical documentation so she could process his FMLA leave application. Respondent did not respond to these voice messages. After the Leaves Department received and reviewed Respondent’s two leave applications, Marjorie Fletcher, Ms Knaub’s supervisor, prepared a form letter, dated September 7, 2005, that notified Respondent that the FMLA leaves application lacked a signed Certification of Health Care Provider form. This form letter also contained the following: Please respond by September 12, 2005 or you will be placed on Board Approved Personal Leave where your position is no longer guaranteed. After learning from Ms. Knaub that Dr. Garcia had established in his letter of August 30, 2005, a deadline of September 6, 2005, for Respondent to furnish the signed Certification of Health Care Provider form, Ms. Fletcher decided not to send to Respondent her letter of September 7. Ms. Knaub did not process Respondent’s application for BAPLA because she learned that Dr. Garcia had recommended that Respondent’s employment be terminated. Petitioner advised Respondent of the following by certified letter dated September 12, 2005, signed by Receca A. Brito, Director of Instructional Staffing: This is to inform you that your name will be submitted to the Broward County School Board on September 20, 2005, with a recommendation for termination of your employment. If you have any questions, please contact Instructional Staffing Department . . . . After Respondent exhausted his last day of authorized leave on August 18, 2005, he was absent from school without authorized leave for more than three consecutive workdays. Respondent left Broward County for approximately three weeks beginning August 25, 2005. When he returned, he received Ms. Brito’s certified letter. The School Board voted on September 20, 2005, to accept Dr. Garcia’s recommendation that Respondent’s employment be terminated. Petitioner has adopted disciplinary guidelines applicable to this proceeding which provide for progressive discipline. Those guidelines were introduced into evidence as Petitioner’s Exhibit 56 and are adopted by reference. Petitioner established that Respondent’s failure to adhere to Petitioner’s leave policies despite repeated efforts to communicate with him had a detrimental impact on the education process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law set forth herein. It is further recommended that Petitioner terminate Respondent’s employment without prejudice to his right to seek re-employment. It is further recommended that Petitioner find Respondent not guilty of insubordination. DONE AND ENTERED this 10th day of August, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of August, 2006.
Findings Of Fact At the time Respondent was advised that DHRS was processing his resignation from his position as Social and Rehabilitative Services Counselor II, effective August 31, 1983 (Exhibit 1), Fox had been employed by DHRS for some 12 years. This was termed a "voluntary" resignation by reason of abandonment of position. Fox had been on leave without pay from August 12, 1983, through August 19, 1983 (Exhibit 4). On Monday, August 22, a woman called Fox's supervisor and told him that Fox was in Miami, his sister had been involved in an automobile accident, and he would not be in to work. On August 24 Fox called his supervisor, Gilbertson, to advise that he was still with his sister but would be back to work by noon on Friday, August 26. During this period, Monday through Friday, Fox was placed on family sick leave. At noon on Friday Fox had exhausted all his sick leave. Fox did not report to work until September 2, 1983, at which time he was given a copy of Exhibit 1, the original of which had been sent to his residence by certified mail. Fox gave no explanation for his absence but took the copy of the letter given him and left abruptly. He was not asked to explain his absence, nor did he offer any such explanation. Fox had earlier had differences with his supervisor, Gilbertson, over what Gilbertson considered excessive use of sick leave by Fox. Fox presented no evidence regarding his period of unauthorized absence from August 26 until he returned September 2. The one witness he called had frequently used sick leave without incurring the displeasure of Gilbertson. However, this witness in the recent past has had his gallbladder removed, hemorrhoid problems, and hepatitis; and had given no reason for anyone to suspect he was abusing the use of sick leave.
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Respondent, Theresa L. Beadle, began her employment with petitioner, Department of Health and Rehabilitative Services (HRS), on or about July 1, 1982. She held the position of clerk typist II with an AFDC unit at HRS' Miami district office. Her position was considered a "pivotal" one by HRS personnel because it was Beadle's responsibility to keep and maintain the unit's case records for recipients. Therefore, attendance was an important criterion for her position. Beadle has suffered from coccygodynia (severe pain of the tailbone) and low back pain for at least three years and has been treated for this condition by both a chiropractor and a physician. According to one of her physicians (Dr. Shuflitowski), she should not engage in "heavy lifting (or) long-stretching of the arms." However, Beadle's job duties do not require these activities, and her physician confirmed in a letter to HRS on December 31, 1986 that "there is no justification for her being unable to perform her job as indicated." In addition to her back ailment, Beadle has also suffered from depression principally caused by the recent death of both her mother and her only son in October, 1986 and January, 1987, respectively. She has been treated by a psychiatrist (Dr. Betancourt) for this condition. After a brief absence from work in early October, 1986, caused by her mother's death, Beadle returned to work on or about October 4, 1986. On December 11, 1986 she left work saying her son was seriously ill in Connecticut. She did not formally obtain leave to do so. Around December 29, her daughter visited HRS' office and spoke with the program administrator, James Sanders, and told him that after speaking with her mother by telephone, she did not know when her mother would return to work. On December 30, 1986 Sanders advised Beadle by certified mail that she was "directed to report to (her) official position by 8:30 a.m. on Thursday, January 8, 1987 . . . (or she would be) deemed . . . (to) have abandoned (her) position and to have resigned from the Career Service." On January 4, 1987 Beadle's son passed away, and his funeral was held on January 8. Beadle eventually returned to Miami in mid-January. Although she did not return to work at that time, Beadle telephoned Sanders' supervisor, Barbara Coles, on January 15 and was told by Coles to either contact Sanders or her immediate supervisor, Albert Peart, concerning her situation by January 16. She did not contact either person. On January 20, Beadle's daughter telephoned Sanders to say her mother was unable to come to work. On January 23, Beadle sent Sanders a "disability certificate" from a Dr. Ticktin, a Hialeah orthopedic surgeon, who attested that Beadle had been under his care since January 15 and would be "totally incapacitated" until February 5. However, he also wrote a cover letter stating that Beadle had an appointment on January 15 and could "return to work with no heavy lifting." After receiving the above certificate, Sanders wrote Beadle by certified mail on January 23 advising that she was "directed to report to work immediately and provide an explanation for her absences." Again, Beadle did not directly respond to this letter but had Dr. Betancourt, a Miami Shores psychiatrist, send a letter to HRS on February 5 stating that Beadle was under his professional care and could not return to work until February 20. A disability certificate was later sent by Dr. Betancourt attesting that Beadle was "totally incapacitated from January 15 to February 19" and could not return to work until March 6, 1987. Upon receipt of Dr. Betancourt's correspondence, Sanders sent Dr. Betancourt a letter on February 23 requesting further medical information to verify her medical condition. On February 27, Dr. Betancourt responded and advised that although Beadle was suffering from depression, she could "perform (her) duties without any limitations." He also suggested she be transferred to another position "with fewer environmental stressors." On March 12, Beadle returned to work for a "few days," but left soon afterwards to go to Plant City for an undisclosed purpose. There is no evidence that she requested leave to do so. She never returned to work. On March 30, 1987, Coles contacted Sanders about Beadle's absences, and told him he was in danger of being charged with negligence for not taking any action against Beadle. Up to this time, Sanders had not initiated disciplinary action because, in his words, he wanted to give Beadle a chance to return, was a "softie," and knew that being fired was a "traumatic" experience. However, now fearing for his own situation, Sanders wrote Beadle on April 15 requesting a medical certificate and advising her that unless her supervisor (Peart) received a certificate by April 22, all leave used by Beadle after that date would be "unauthorized." Apparently responding to the above request, Beadle had Dr. Betancourt prepare a certificate stating that Beadle had been under his care from April 2 to April 20, but could return to work on April 20. This certificate was received by HRS on April 17. On April 21, Dr. Betancourt sent Sanders a letter stating that "Beadle would like to request a leave of absence for six months because of her emotional turmoil and recent trauma." During this same period of time, Beadle did not personally contact Peart, Sanders or Coles concerning a leave of absence. Confronted with this maze of disability certificates and conflicting medical advice, HRS decided to have Beadle evaluated by another physician. It accordingly advised her by certified mail dated May 4 that she should contact a Dr. Gilmore and make an appointment for an examination. The letter was not picked up by Beadle and was returned to HRS unclaimed. Two other certified letters sent on May 12 and 14 to Beadle were also unclaimed. Beadle never made an appointment with nor was she examined by Dr. Gilmore. On June 25, Beadle was advised by certified mail that in view of her failure to contact her supervisor since her last day of work on March 31, 1987, or to request leave, she was terminated effective upon receipt of the letter. Beadle received the letter, and thereafter requested a hearing to contest the action. Beadle pointed out that she had experienced a series of problems with her supervisor (Peart) who continually harassed her after her return on October She also stated her job evaluations were always good until she was transferred into Peart's unit, and that in her fragile emotional state caused by her recent tragedies, she could not cope with the job stress generated by Peart's harassment. She also pointed out that a request to Sanders to transfer units was ignored. She conceded that she had signed a statement acknowledging she had read and understood the employee's handbook. This handbook explains the unauthorized absence rule, and the need to obtain authorized leave before being absent from work. She also conceded she had been absent for more than three consecutive workdays since March 31, 1987 without having authorized leave. Beadle wishes to eventually return to work, but not in the same unit, and only after she is psychologically able to cope with job stress.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Theresa L. Beadle abandoned her job with petitioner. DONE AND ORDERED this 9th day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of November, 1987.
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 Whether the Respondent's layoff of Petitioner was in compliance with Chapter 11, Florida Statutes and Chapters 22A-10 Florida Administrative Code. Whether the Respondent's layoff of Petitioner should be sustained.
Findings Of Fact Petitioner, Vernon K. Yon, was laid off by Florida State University on June 12, 1975 and has subsequently been unemployed. The layoff of Petitioner came as the direct result of the elimination of Petitioner's position, Stores Manager, Legislative Position Number 20156, from the working capital account of Respondent. The deletion of Petitioner's position and the layoff of Petitioner was approved by the Respondent's personnel director, the Chancellor of the State University System and the State Personnel Director. Petitioner was the only employee within the classification of Stores Manager in the Respondent Agency. The Agency reported to the State Personnel Director the name of Petitioner and Petitioner was placed on the appropriate State Layoff Register. The Agency's funded vacant positions do not include the position of Stores Manager and the Agency has taken no action to recreate such a position or to interview or employ any individual in the position since its elimination on June 12, 1975. The State Personnel Information Vacant Position Report dated January 5, 1976 showed Position Classification 0625, Stores Manager, Pay Grade 22, at Florida State University vacant. The Position Classification of Stores Manager was removed from the working capital account of the Agency but was retained in the University Auxiliary Reserve Account in the University Budget Office. Thus, the Position is subject to being re-established, and should such position be re- established, Petitioner Yon would have had first right of recall to that position if such position had been established within twelve (12) months from the date of layoff. Two positions were abolished at the time that Petitioner's position was abolished - the position of Stores Manager and the Storekeeper position. There were twenty-two (22) layoffs at the time of the reorganization, some of whom went to other positions with Respondent Agency but all left the Maintenance Section in which Petitioner was employed. Petitioner contends: That his position has not been abolished as required by Chapter 110, Florida Statutes; that the Respondent Agency continues to hold the Position in its Auxiliary Reserve Account; that the Department of Administration Division of Personnel Procedures of Florida Statutes 110, do not support the procedure of holding abolished positions in a Reserve Position status. The position is shown on the personnel records to be vacant. That the evidence does not show that there was a shortage of funds or a material change in the organization of the agency. That the Petitioner was not granted fully re-employment rights as to demotion or reassignment in lieu of layoff. Respondent Agency contends: That the listing of Petitioner's position as "vacant" is through an error not of the Respondent Agency's making, but is a list kept by the State Personnel Director in the Department of Administration. That Respondent's prior position "Stores Manager" is not a funded position and the retention of such a position as an Auxiliary Position is a mere method or device so that a position of similar or different classification could be established in the future when working capital funds might become available to the Agency. That the Respondent Agency has deleted its sole position of Stores Manager, the position occupied by the Petitioner; that there is no intent to re-establish the position; that no funds are available for re-establishing the position and that Petitioner's layoff came as direct result of the elimination of Petitioner's position through a reorganization caused by a shortage of University funds; that a reallocation of the workload and a reassignment of the responsibilities to a different unit is a more efficient use of University funds. That the action of Respondent Agency is not an action based upon dismissal for cause. That all the procedural requirements were followed and the layoff is valid. The Hearing Officer further finds: That the layoff of Petitioner was a direct result of a shortage of Agency funds and a reorganization brought about as a result of an attempt to conserve Agency funds. That the layoff of Petitioner is not a disciplinary action. That the Respondent Agency has abolished the position of Stores Manager held by Petitioner. That the Respondent Agency has properly followed the requirements of the Florida Statutes and the rules promulgated thereunder.
Recommendation Dismiss the appeal. DONE AND ENTERED this 15th day of June, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June. COPIES FURNISHED: Mr. Vernon K. Yon 4105 Arklow Drive Tallahassee, Florida 32303 Robert D. Bickel, Esquire Suite 309 Westcott Building Florida State University Tallahassee, Florida 32306 Ronald A. Mowrey, Esquire Post Office Box 3021 Tallahassee, Florida 32303
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, 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. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept 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 rules and regulations. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
The Issue Whether respondent discriminated against petitioner on account of her race in not promoting her to executive director, denying her a salary increase, threatening her with a demotion and/or placing her on medical leave?
Findings Of Fact At the time and place noticed for hearing, petitioner failed to appear and nobody appeared on her behalf.
Recommendation It is, accordingly, recommended that the FCHR enter an order denying the petition for relief. RECOMMENDED this 22nd day of January, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1992. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Anita I. Parker 7740 Southside Blvd., #501 Jacksonville, FL 32256 Glenn R. Padgett, Esquire Kinsey Vincent & Pyle P.O. Box 3096 Daytona Beach, FL 32018-0096
