The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on May 31, 2012.
Findings Of Fact For more than ten years, Petitioner has worked as a pharmacist. On April 18, 2011, Respondent extended to Petitioner an offer of employment to work as a "licensed staff pharmacist" at store 1220 in Orlando, Florida. Petitioner accepted Respondent's offer. Petitioner, as a licensed staff pharmacist, was paid $56.46 per hour. In her position as licensed staff pharmacist, Petitioner was supervised by Doug Fellers. Placing a face with a name In July 2011, Petitioner desired promotion to a full- time salaried position at Respondent's store 3538 in Viera, Florida. According to Petitioner, her immediate supervisor Doug Fellers, recommended to his supervisor Kelly Altman, regional pharmacy director, that Petitioner be promoted. Petitioner contends that Kelly Altman initially supported her bid for promotion but withdrew his support upon meeting Petitioner and seeing that she is African-American. Petitioner believes that Mr. Altman harbored feelings of discriminatory animus towards her because when they initially met, Mr. Altman told Petitioner that he had heard a lot about her, that it was good to finally "put a face with a name," and looked at her in a manner that she described as being with "quiet disgust." The evidence does not establish that Mr. Altman harbored any discriminatory animus towards Petitioner. Contrary to Petitioner's contention, Mr. Altman was very supportive of Petitioner as evidenced by the fact that on July 25, 2011, he approved the recommendation for Petitioner's promotion and took no action against Petitioner to thwart or otherwise interfere with her promotion. In August 2011, Petitioner began working in a full-time salaried position as a licensed staff pharmacist at Respondent's store 3538 in Viera, Florida. In her new position, Petitioner earned an annual base salary of $119,516.80. Store 3538 and "Buckwheat" Petitioner alleges that while working at store 3538 she was subjected to racially insensitive remarks. Specifically, Petitioner alleges that her co-worker, Lauren Harmon, often in response to questions from Petitioner, would respond by saying "o'tay."2/ Petitioner took offense to Ms. Harmon's "speaking to [her] like '[B]uckwheat.'" It is undisputed that Ms. Harmon, who by all accounts is Caucasian, was employed at store 3538 prior to Petitioner's arrival. According to several witnesses, Ms. Harmon, well in advance of Petitioner's transfer to the store, would often say "o'tay" when responding to statements made by co-workers and would do so regardless of the race of the co-worker. Although Petitioner was offended by Ms. Harmon's use of "o'tay," other employees did not find "o'tay" to be objectionable and merely thought that Ms. Harmon was "speaking in baby talk." Nevertheless, Petitioner subjectively believed Ms. Harmon's remarks to be highly offensive and racially motivated. Petitioner formally complained to her superiors about Ms. Harmon and her use of "o'tay." An investigation was conducted and once it was determined that Ms. Harmon had in fact said "o'tay," she was instructed by management to immediately cease and desist saying "o'tay" because Petitioner found the pseudo-word offensive. Ms. Harmon complied with the cease and desist directive, except for one isolated instance when she inadvertently repeated the offensive language. Respondent, upon learning of Petitioner's concerns about the pejorative nature of the pseudo-word "o'tay," took prompt and appropriate remedial action to address Petitioner's concerns. Pharmacist-in-charge Michelle Graziani was the pharmacy manager when Petitioner arrived at store 3538 in Viera, Florida. During this same period, Ms. Graziani also served as the store's pharmacist- in-charge (PIC).3/ The PIC is responsible for ensuring the security of the pharmacy and compliance with all laws and related rules. In late December 2011, Ms. Graziani ceased working at store 3538, thereby leaving the store in need of a PIC. Around the time of Ms. Graziani's departure, Doug Fellers approached Petitioner and asked if she would be willing to temporarily serve as the PIC for store 3538. As part of this same conversation, Mr. Fellers advised Petitioner that if she desired, she could also apply for the head pharmacy position previously occupied by Ms. Graziani. Petitioner accepted Mr. Feller's offer and started working as the PIC for store 3538 in late December 2011. It is typically the case that the pharmacy manager for a particular store will also serve as the PIC. In instances where a pharmacy is temporarily without a manager, a PIC will be designated to serve on an interim basis. Respondent, through its personnel system, assigns classification codes to positions occupied by employees of the company. The personnel classification system does not however contain a classification code for PIC. When an employee serves as PIC on a temporary basis, Respondent classifies these employees as "Assistant Pharmacy Managers" and "Assistant Pharmacists."4/ Petitioner asserts that when she was asked by Doug Fellers to serve as temporary PIC for store 3538, he also offered her promotion to the permanent position of assistant pharmacy manager. Doug Fellers denies that Petitioner was either made or offered the position of permanent assistant pharmacy manager for store 3538. On January 13, 2012, Petitioner signed an employment offer from Respondent wherein she accepted the position of Assistant Pharmacy Manager at store 3538. Petitioner's annual salary was increased to $121,596.80. The document signed by Petitioner is silent on the question of whether the appointment to assistant pharmacy manager was temporary or permanent. However, one of the supporting documents used to generate the assistant pharmacy manager offer sheet signed by Petitioner states that "[t]his is just an offer to go from Salaried Staff to PIC at 3538 until we finalize the RxMgr position. She is just receiving the $1.00 more increase and job code to Asst MGR[.]"5/ The credible evidence establishes that Petitioner was temporarily placed in the position of assistant pharmacy manager/PIC at store 3538 until such time as a new store pharmacy manager/PIC could be hired by Respondent. Respondent eventually hired a store pharmacy manager following Ms. Graziani's departure and upon doing so, Petitioner was relieved of the responsibility of serving as PIC for store 3538. Although Petitioner was relieved of her duties as PIC, her salary continued at the same level and her official job title, to this day, remains assistant pharmacist.6/ Respondent removed Petitioner from the PIC position for non-discriminatory, legitimate business reasons. Vacant pharmacy store manager's position During the period when Petitioner served as PIC for store 3538, Respondent accepted applications for the vacant pharmacy manager's position. It is undisputed that Petitioner did not apply for the manager's position. Petitioner claims that she "was harassed to the point where [she] couldn't apply for the position." The evidence does not support Petitioner's allegation. Petitioner cites numerous incidents that, in her mind, establish impermissible discrimination. One instance of alleged discrimination occurred when Doug Fellers visited Petitioner's store for the purpose of having her sign the contract that temporarily promoted her to the position of assistant pharmacy manager. Petitioner alleges that several employees complained to Doug Fellers that Petitioner was bragging about being the favored candidate for the vacant pharmacy manager's position. According to Petitioner, when Doug Fellers became aware of Petitioner's alleged boasting, he admonished Petitioner by telling her that she was not guaranteed the position of pharmacy manager. Petitioner responded to Doug Fellers by denying that she had made such statements regarding the vacant position. Petitioner internalized the admonishment from Doug Fellers as an indication that he would not favorably consider her for the vacant position. Doug Fellers credibly testified, however, that he harbored no such ill will towards Petitioner and would have favorably considered her application for pharmacy manager had she applied. Another instance of alleged discrimination occurred when Petitioner was instructed by her supervisor to retrieve from a waste bin information that may have contained sensitive patient information. Petitioner believes that she was instructed to retrieve the patient information from the waste bin because of her race. Respondent testified that there were problems at store 3538 with patient identifying information being improperly disposed of by individuals in the pharmacy. As the PIC, Petitioner was responsible for ensuring that patient identification information was properly protected. Respondent instructed Petitioner to personally review the contents of the waste bin to ensure that private patient information was not contained therein. This directive to Petitioner was in furtherance of Respondent's legitimate business interests associated with protecting patient privacy. While Petitioner took offense at being charged with this task, there is no evidence indicating that Respondent's directive to Petitioner to filter the contents of the waste bin was motivated by racial animus. Petitioner cites as additional evidence of impermissible discrimination, the fact that during the time she served as PIC, Respondent placed her under excessive scrutiny when it relocated the pharmacy's hazardous waste bin to a location where the bin was constantly monitored by video surveillance. Respondent explained that its risk management protocols require that the hazardous waste bin be continuously monitored by video surveillance and that the bin at Petitioner's store was relocated in order to bring it into compliance with the established protocol. Petitioner offered no credible evidence demonstrating that Respondent's asserted reason is pre-textual or that Respondent applied the policy in such a way as to single out Petitioner. Petitioner also claims that the contents of the hazardous waste bin were given extra scrutiny by Respondent while she served as PIC. However, credible testimony was offered explaining that the level of scrutiny given by Respondent to the hazardous waste bin during Petitioner's tenure as PIC was the same as it was prior to Petitioner's serving as PIC. Even if the level of scrutiny of the contents of the hazardous waste bin was intensified during Petitioner's service as PIC, Petitioner offered no credible evidence establishing that the alleged heightened scrutiny resulted from impermissible discriminatory animus. Finally, Petitioner alleges that Respondent harassed her by manipulating the tracking data that it uses to monitor the productivity of its pharmacists. Petitioner's theory as to this issue seems to be that Respondent manipulated Petitioner's productivity numbers in an attempt to dissuade her from applying for the vacant pharmacy manager's position previously referenced. In response to this allegation, Respondent offered credible evidence that the data in question may be used for myriad reasons, but it is not used in and of itself as a basis for taking disciplinary or other forms of employment action against its pharmacists. While there may have been anomalies with some of Petitioner's productivity data, there is no credible evidence establishing that the data was manipulated by Respondent for impermissible discriminatory reasons. Alleged leg disability Petitioner suffers from venous insufficiency that causes her legs to "jerk, hurt, burn, and swell." Petitioner claims that Respondent discriminated against her "because of [her] leg disability." In early April 2012, Petitioner, after having worked "3 days straight at Walmart," suffered, while at home, a leg cramp that caused her to fall and injure her arm. Petitioner missed two weeks of work as a consequence of the injury to her arm. During her period of convalescence, Michael Judd contacted Petitioner and inquired about the cause of her injury and the status of her recovery. In response to Mr. Judd's inquiry, Petitioner explained that she had a leg cramp that caused her to fall and injure herself. Petitioner, neither before, nor during Mr. Judd's inquiry, disclosed that she suffers from venous insufficiency. When Petitioner returned to work on or about April 15, 2012, Mr. Judd again inquired about the circumstances surrounding Petitioner's arm injury and the status of her recovery. The following day, April 16, 2012, Petitioner was instructed by Respondent to complete a number of outstanding training modules and finalize paperwork for insurance-related payroll deductions. Petitioner believes that the enumerated actions collectively establish that she was harassed because of her venous insufficiency. Contrary to Petitioner's assertion, the above- described events do not establish a reasonably objective hostile or abusive work environment. Retaliation Petitioner contends that Respondent retaliated against her after she complained about Lauren Harmon. Petitioner claims that Respondent elevated its scrutiny of the hazardous materials (hazmat) bin following Petitioner's work shifts, that Respondent launched a bogus investigation against her for an alleged HIPPA violation, and that two of Respondent's store managers were whispering with a third party but stopped doing so once they realized that Petitioner was present. Respondent credibly explained that it moved the hazmat bin in view of the surveillance camera as required by its loss prevention/risk management policy. While it is true that Respondent investigated Petitioner for an alleged HIPPA violation, the investigation completely exonerated Petitioner of any wrongdoing and no adverse employment action resulted to Petitioner as a consequence of the investigation. Finally, Petitioner, by her own admission, has absolutely no idea what the store managers were whispering about when they became aware of Petitioner's presence. Petitioner has failed to offer any credible evidence to support her claim of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Walmart Stores East, did not commit an unlawful employment practice as alleged by Petitioner, Dr. Sharon E. McIntosh, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 4th day of September, 2013.
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)
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
Findings Of Fact The Petitioner, Johnny L. Richardson, was a test technician in the receiving/inspection department of the Respondent, Group Technologies Corporation, when he became ill, had to be hospitalized, and went on a medical leave of absence on September 6, 1990. Before he was able to return to work, in addition to the illness that resulted in his initial hospitalization, the Petitioner suffered two pulmonary embolisms that required hospitization and had a lobectomy (removal of part of one lung). At the time of his ultimate discharge from the hospital, the Petitioner was diagnosed with a number of medical conditions. He had hypovolemic shock, viral myocarditis, with cardiomyopathy and right ventricular failure, pulmonary abscesses, congestive heart failure, leukocytosis, chest wall pain and pleurisy. In addition, he already had insulin dependent diabetes mellitus. Because of the length of the Petitioner's medical leave of absence, and the Respondent's needs, the Petitioner's former position in the receiving/inspection department was filled during his absence, in accordance with standard company policy. The Respondent's treating physicans released him to return to work on or about July 2, 1991. At the time, the Respondent was aware of the Petitioner's preexisting insulin dependent diabetes mellitus, and was generally aware that the Petitioner's health problems had required hospitalization and a medical leave of absence. But the Respondent did not have detailed medical information concerning the Petitioner's other medical diagnoses. On or about July 2, 1991, the Petitioner contacted the Respondent's staff nurse to advise her that he had been released to return to work. She made arrangements for him to be seen on July 8, 1991, by the Respondent's consulting physician, in accordance with standard procedures for employees on leave of absence for over 90 days. The consulting physician was a specialist in occupational medicine and had a working knowledge of the Respondent's work place and the jobs performed by its employees. He was to use this expertise and knowledge to verify that the employee could do the job he was to perform and to determine whether any restrictions or limitations were appropriate in view of the employee's medical condition. The staff nurse also advised the Petitioner to contact the Respondent's Human Resources Representative (HR Rep) to tell her that his treating physicians had cleared him to return to work. The next day, the Petitioner telephoned the HR Rep, but she was out on vacation until July 8, 1991. On or about July 8, 1991, the Petitioner was seen by the company's consulting physician. A routine medical examination was conducted, including taking a history. The Petitioner told the doctor that he had coronary heart disease, diabetes, lung abcess and hypertension and was taking various medications, including Coumadin and Lanoxin for his heart disease, Lasix and Prednisone for his chronic lung disease and breathing disorders, and insulin for his diabetes. He also reported the lobectomy. Based on the medical examination, the doctor prepared a report stating that he needed medical records from the Petitioner's treating physicians and that the Petitioner would need a job check before reemployment to ascertain the suitability of the particular job in which he was placed. In addition, the report stated that the Petitioner would have to avoid physical stress and avoid lifting heavy weight. The report also suggested that the Petitioner's exposure to chemicals may have to be limited. The doctor also filled out and gave the Petitioner a form stating that the "disposition" of the examination was that the Petitioner was to have "no duty." The Petitioner gave this form to the staff nurse, but the evidence is not clear when. On the day of the examination, before the report was sent to the Respondent's medical office, or even typed, the doctor telephoned a report to the Respondent's staff nurse. The nurse in turn telephoned the HR Rep and told her that, per the doctor's instructions, the Petitioner was not to work with chemicals and was to limit lifting to 25 pounds. The HR Rep also was advised that it would be best for the Petitioner not to work night shifts due to the medications he was taking. As can be seen, the information on the "disposition" form was not consistent with the information in the written report or with the information in the telephonic report the staff nurse gave the HR Rep that day. The Petitioner also saw the HR Rep on July 8, 1991. (She had just returned from vacation.) It is not clear from the evidence whether, at the time of her meeting with the Petitioner, the HR Rep already had received the telephonic report from the company's staff nurse. During the Petitioner's meeting with the HR Rep, the HR Rep told the Petitioner that she would have to determine whether the company had any test technician positions, or other positions with status and pay commensurate with the Petitioner's former position, that were open. Under company policies, employees returning to work after an extended leave of absence, during which their former positions were filled, were entitled to be considered for other positions with status and pay commensurate with the employee's former position, if any were available. The HR Rep reviewed her open requisition lists and determined that there were no suitable positions open at the time. (On or about June 28, 1991, the Respondent had extended job offers, with start dates in early July, to eight applicants for test technician positions that the company had been in the process of filling in June.) She telephoned this information to the Petitioner on either July 8 or 9, 1991, and told him that she would have to lay him off with recall rights. Actually, company policy provides for laying employees off with recall rights as a result of reductions in work force. It does not specifically apply to the situation where an employee returns to work after an extended leave of absence, during which the employee's former position was filled, and there are no positions with status and pay commensurate with the employee's former position available. But, since there was no other employment status designated by personnel policies for such an employee, the company felt that it was appropriate to lay off such an employee with recall rights. Under company policy, an employee who is laid off with recall rights has a right to be considered for recall before new employees with similar skills are hired. This is not a guarantee of reemployment but only right to be considered for employment before "external candidates" are considered. Actually, even under this interpretation of company policies, the Petitioner should have been laid off with recall rights only if he was ready to return to duty with restrictions (as indicated in the consulting physician's written report, and in the telephonic report from the staff nurse to the HR Rep). If he was unable to return to duty at that time (as indicated by the "disposition" form), he should have been continued on medical leave of absence. At the conclusion of their meeting on July 8, 1991, the HR Rep told the Petitioner that he would be contacted if there were any openings for him, or words to that effect. On or about July 12, 1991, the HR Rep became aware of an employee requisition request with a position with status and pay commensurate with the Petitioner's former position. She contacted the hiring supervisor and asked if he was interested in hiring the Petitioner for the position. The hiring supervisor quickly replied that he was not interested in hiring the Petitioner. Asked why not, he answered that he knew the Petitioner's attendance and performance history from having worked with the Petitioner in past years, and from knowing the Petitioner's reputation, he was not interested in hiring him. Further specifics about the hiring supervisor's reasons for not wanting to hire the Petitioner were neither given nor asked for until approximately January, 1992, which is after the filing of the Charge of Discrimination in this case. If asked, the hiring supervisor would have said that, during a period of time in which they worked together in the early 1980s, the Petitioner was frequently absent from work, frequently wandered away from his work station, and frequently could not be found when needed. Later, in the late 1980s and early 1990, the hiring supervisor had several occasions to inquire as to the reason for delays and was told that there was a bottleneck in the receiving/inspection department because the Petitioner was absent from work again. The Petitioner's absences made it difficult for those depending on the Petitioner's work to meet production deadlines. To attempt to deal with the Petitioner's absences, the company tried to get the employee in the position in the shifts before and after the Petitioner's shift to work overtime. After talking to the hiring supervisor, the HR Rep reported to her supervisor, who helped her research the Petitioner's personnel file to determine if there was "reasonable justification" for the hiring supervisor's rejection of the Petitioner on the basis given to the HR Rep. They learned from the Petitioner's personnel records that, on or about May 17, 1990, the Petitioner's supervisor counseled him that his attendance had to improve. In June, 1990, the Petitioner's performance appraisal reflected the attendance problems. It indicated some improvement but stated that further improvement was necessary for the Petitioner's attendance record to be within company norms. The appraisal also indicated that the Petitioner's performance no longer was improving, as the prior year's appraisal indicated it had been. It is not clear from the evidence whether the HR Rep and her supervisor also reviewed the Petitioner's attendance records. If they had, they would have also seen that the Petitioner was absent from work a total of 220 hours in 1989, not including 64 hours during plant shutdowns. From January to May, 1990, the Petitioner was absent a total of 46 hours, in addition to 124 hours of vacation leave without prior notice. After Sumner declined to hire the Petitioner, the HR Rep did not ask other hiring supervisors to consider the Petitioner for openings before considering external candidates. She did not tell the Petitioner that he had been rejected for the opening on or about July 12, 1991, or that his recall rights effectively had been terminated (in that she no longer was asking hiring supervisors to consider the Petitioner for openings before considering external candidates.) Nonetheless, the Petitioner was not surprised not to be recalled because he knew that employees who are laid off with recall rights are rarely recalled. The Petitioner acknowledges that he cannot prove, by direct evidence, that the Respondent discriminated against the Petitioner on the basis of a handicap or perceived handicap. Instead, the Petitioner argues that it should be inferred from the evidence that the Respondent, first, laid off the Petitioner instead of maintaining him on medical leave of absence and, second, did not recall him, in furtherance of plan to terminate his employment because of his handicap or perceived handicap. The inference the Petitioner seeks to have drawn was not proven by a preponderance of the evidence. First, as for the decision to lay the Petitioner off, there is no persuasive evidence that it would have been significantly more difficult ultimately to terminate the Petitioner's employment if the Petitioner had been maintained for the time being on medical leave of absence. Second, as to the decision not to recall the Petitioner, it was not proven that the Respondent did not recall the Petitioner for any reason other than the one articulated by the Respondent--namely, hiring supervisor Sumner rejected him for the reasons he gave. The Respondent is an equal opportunity employer and takes affirmative, proactive steps to recruit, hire and retain minorities and handicapped persons. It has completed required affirmative action plans, does adverse impact analyses on a semiannual basis, and advertises and recruits from agencies that deal with disabled persons. While the Respondent did not hire the Petitioner back after his extended medical leave of absence, it has hired others back after medical leaves of absence of 90 days or more. One employee was hired back after heart catheterization and coronary bypass surgery. Another was hired back after rupturing a disc and having back surgery. Both were returned to work with restrictions, after seeing the same consulting physician the Petitioner saw. Their medical conditions were at least as susceptible of being perceived as being handicaps as the Petitioner's. In both of those cases, the employee was able to be returned to the positions from which they had to take leave; they did not have to be laid off. Conversely, other employees who had not been on medical leave of absence but were laid off with recall rights in connection with a reduction in work force also have not been recalled. Three such employees who were laid off during the August, 1990, reduction in force were not even recommended to hiring supervisors for suitable positions that came open during the period of time in which their recall rights were effective, even though they were technically more qualified for the positions, based on their higher job grade levels, than the people ultimately hired for the jobs. The reason they were not recalled was that they had been laid off because their job performance ranked them at the bottom of the "totem pole" of employees subject to possible layoff in the reduction in force. The Petitioner survived the August, 1990, reduction in force because, based on need, no reduction was made in the receiving/inspection department. If there had been, the Petitioner would have been the first to be laid off due his rank at the bottom of the "totem pole" for the test technician positions in his department. The failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But none of those possibilities would constitute, nor do they prove, discrimination on the basis of handicap or perceived handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 15th day of September, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1224 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated to the extent not subordinate or unnecessary. Penultimate sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 10.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. As to second sentence, not necessarily all such employees see Myint on returning. It depends on the staff nurse's judgment as to the necessity. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Rejected as not proven that the policy itself "entitled" the Petitioner; rather, it was the Respondent's favorable interpretation of the policy. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20. As to the last sentence, Sumner gave some specifics at the time, but not many, as reflected in the Findings of Fact. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Accepted and incorporated to the extent not subordinate or unnecessary. (However, as to 22, at least the last time, everyone under Gonzalez got a "merit" increase, and the Petitioner got the smallest raise because his job performance ranked him the lowest on the "totem pole.") 24. First sentence, accepted and incorporated. The rest is rejected as subordinate to facts contrary to those found. 25.-27. In part accepted, but in part rejected. Rejected as not proven that the Petitioner was not considered for the July 12, 1991, opening. Sumner did consider the Petitioner and rejected him. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." But, if not "reasonable," their actions did not prove discrimination on the basis of handicap or perceived handicap. Rejected as not proven that Wilson "considered Richardson a potential problem employee because of his long illness." Rejected as not proven that the Respondent ever considered the Petitioner "unqualified." Rejected as not proven that the Respondent discriminated against the Petitioner on the basis of handicap or perceived handicap. Rejected in part as argument. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary. 28.-32. Accepted but generally subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. 8. Rejected as contrary to the greater weight of the evidence that his "performance" declined. Rather, the appraisal would indicate that the rate of improvement in his performance had declined. 9.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Generally, accepted and incorporated to the extent not subordinate or unnecessary. (The information imparted by the doctor was somewhat ambiguous.) 24.-31. Generally, accepted and incorporated to the extent not subordinate or unnecessary. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." And the Respondent's failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But, as found, those actions did not prove discrimination on the basis of handicap or perceived handicap. 32.-34. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ronald W. Fraley, Esquire Fraley & Fraley, P.A. 501 East Kennedy Boulevard, Suite 1225 Tampa, Florida 33602 Grant D. Peterson, Esquire Haynsworth, Baldwin, Johnson & Harper 1408 North Westshore Boulevard, Suite 1000 Tampa, Florida 33607 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
Findings Of Fact The Petitioner, Harry M. Katz, M.D., is a medical doctor. His address is P.O. Box 192, Cedar Hill, Missouri 63016. He maintains an active family practice in the area of that location and is licensed by the agency charged with regulating and licensing medical doctors in the State of Missouri ("Missouri Board"). The Petitioner is seeking reinstatement of his medical doctor's license revoked by the Florida Board's Final Order of February 14, 1966. The Respondent is the Board of Medicine of the Department of Business and Professional Regulation located at 1940 North Monroe Street, Tallahassee, Florida. It has denied the Petitioner's reinstatement of his Florida medical doctor's license, which initial agency action resulted in this formal proceeding. The Petitioner falls within that class of physicians whose licenses were revoked prior to June 1994 and under the legal authority cited herein, are entitled to petition for reinstatement. In order to have his license reinstated, the Petitioner must demonstrate that he is capable of practicing medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991). On February 14, 1966, the State Board of Medical Examiners revoked the Petitioner's medical license for aiding, assisting and promoting an unlicensed physician to practice medicine and surgery at his hospital and by apparently failing to correctly perform physical examinations upon pilots for the Federal Aviation Administration (FAA), although he certified them as physically fit. The Petitioner had employed a physician (surgeon) to practice at his hospital in Clearwater, Florida, including the performance of surgery. Sometime later, while that physician was in his employ, the Petitioner learned that his license had been either revoked or suspended. The Petitioner states that he promptly contacted the State Board of Medical Examiners to ascertain what his responsibility was in terms of employing such a physician, who was unlicensed, without the Petitioner's knowledge. The Petitioner states that he was informed by the Executive Director of the Medical Board that, in effect, he was not liable or subject to enforcement action by the Board for unknowingly allowing the unlicensed physician to practice under the circumstances described in the Petitioner's testimony in this case. Nevertheless, the Petitioner was ultimately prosecuted by the Medical Board for this activity, some of which occurred soon after he became aware of the doctor's license suspension, and also for allegedly certifying pilots as physically fit to the FAA when he had not actually done complete physical examinations. The Petitioner maintains that, indeed, he did do physical examinations on the four pilots, but testified that he did not do prostate examinations because it was not medically necessary, with pilots of such a young age to do such examinations. The Board found that he could not have done adequate physicals if the pilots were not required to disrobe. In any event, his medical license was revoked, which he freely admits. Sometime in 1972, the Petitioner was prosecuted on a federal indictment, concerning charges in the nature of "medicare fraud". In essence, the Petitioner was charged with billing the medicare system for doctor/patient visits, for patients in his hospital, for each day the patients resided in his hospital, which apparently did not conform to medicare regulations. The Petitioner maintains that, indeed, he made the visits he billed for and believed that he was billing correctly for them. Nonetheless, he acknowledges that he was convicted and sentenced to two years in the federal prison facility at Eglin Air Force Base for those charges. Shortly after his confinement, the sentence was reduced to one year. The Petitioner appealed both the state license revocation and the federal criminal conviction, but both were upheld on appeal. The Petitioner testified concerning circumstances surrounding his federal trial involving purported inappropriate, ineffective and possible failure by the prosecution to reveal potential exculpatory evidence representation by his counsel, the effect of which he was unable to overturn in the appellate process. Be that as it may, as the Petitioner concedes, he did have his medical doctor's license revoked in 1966 and suffered a federal conviction in 1972. The Petitioner's license to practice medicine in the Commonwealth of Kentucky was revoked based upon the Florida disciplinary action, and his Alabama license was voluntarily surrendered on the same basis. His application for licensure in South Dakota was denied based, in effect, upon the Florida disciplinary action, and his application for a State of Louisiana medical license was denied, as to full licensure, on the same basis. The State of Louisiana, however, did grant him a conditional license to practice medicine, which authorized him to practice as an employed physician at the Louisiana State Penitentiary at Angola. He served in that capacity and was promoted to medical director of the facility, providing medical care for some 4,000 inmates. Additionally, the Petitioner applied for licensure with the Kansas Board of Healing Arts, but elected not to pursue that licensure. The application was deemed withdrawn. The various state medical licensing boards revoked the Petitioner's pre-existing licensure or denied his applications for licensure based upon the Florida disciplinary action. Those other state boards took the position that he had to cure the licensure deficiency in Florida before he could be licensed in the other states. Those licensure actions were not based upon any independent disciplinary prosecutions in those states. The Petitioner practiced as a physician III and physician IV in the Louisiana Department of Corrections at the penitentiary at Angola from sometime in 1973 until 1981. He became medical director of that facility. He performed a competent and honorable medical practice at that facility, as shown by unrefuted testimony in this proceeding and by the testimonial letters stipulated into evidence. The Petitioner is currently licensed to practice medicine in the State of Missouri, where he has conducted a family practice since 1981. During his tenure in practice in Missouri, he had four malpractice suits filed against him. The first suit was settled for the sum of $1,200.00. The second and third suits were dismissed. The fourth suit resulted in a verdict in his favor. The verdict was later set aside, but the case was settled for the sum of $15,000.00. One of the malpractice suits resulted in the State Board of Registration for the Healing Arts in Missouri inquiring into his practice in that instance. His licensure status was not disciplined, but the Missouri Board required him to take the SPEX examination administered by the Federation of State Medical Boards. He took that examination and passed it with a score of 81. The Petitioner is held in high esteem by his colleagues in the medical profession in Missouri, as shown by the testimonial letters in evidence and by a certificate of appreciation he was awarded by the St. Louis University Medical Center for his support and medical practice in conjunction with the St. Louis University Hospital's clinical services and teaching mission in conjunction with its operations as a teaching hospital. He has referred numerous patients to that facility and has received favorable comment on his evaluation, treatment of patients, and the good standards with which he has conducted his practice. The Petitioner is licensed to prescribe narcotics without restriction. He is current with all of the required continuing medical education requirements and exceeds those requirements. He held a certificate of membership in good standing with the American Medical Association at least through July 1, 1993. He is a participant in good standing in the Medicare and Medicaid programs in the State of Missouri. He holds a valid certificate from the United States Department of Health and Human Services for clinical laboratory services. He is a participating physician in good standing with the Medicare and Medicaid programs and with the Blue Cross/Blue Shield program and is approved by the United States Department of Transportation to perform its required physicals. During his tenure in Louisiana, he was a member in good standing in the Louisiana State Medical Society from approximately 1976 to 1980 and an officer of that association. He is a member in good standing of the American Medical Association as an AMA senior physician, the Southern Medical Association, since about 1982, and the American Correctional Association. Additionally, he has been board certified in the field of family practice by the American Board of Family Practice since 1976, in good standing. The Petitioner has labored with a commendable dedication to good medical practice in amassing the above-found credits to his medical practice since suffering the above-referenced blemishes on his professional record so long ago, culminating in his demonstration to the Missouri State Board of his ability to safely engage in the practice of medicine by passing the SPEX examination with a high score. He has demonstrated that he is capable of and has practiced medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991). The testimony of Georgia Leigh Katz, the Petitioner's daughter, speaks eloquently to the high level of character demonstrated by the Petitioner's single-minded dedication to his medical practice, even under his diminished professional standing for over 20 years. That demonstration of the perseverance and character with which he has approached his practice of medicine, under professionally and legally straitened circumstances during that time, certainly militates in favor of finding him rehabilitated from his prior disciplinary blemishes. Ms. Katz' testimony was unrefuted and is adopted herein by reference as true. She thus established that, although not the fault of the medical board nor the federal court, the Petitioner's disciplinary action in Florida and the federal court conviction effectively destroyed his family. Shortly thereafter, he and his wife were divorced; and he, for much of the ensuing, approximate quarter century, has had to live apart from his children, in a distant state, while attempting, with his licensure impairment, to earn a relatively meager living and to support his family. He has made herculian efforts to support his family and himself with his medical practice, which could not reach its full potential because of the blemishes upon his professional record. Ms. Katz' testimony demonstrated, in a truly heart-rending way, the effect which this has had upon the Petitioner, his children and his former wife, their mother, in terms of the lack of financial security these circumstances imposed and, more importantly, the emotional hardship caused to the Petitioner and his family. The Petitioner's dedication to his profession under these debilitating circumstances for these long years certainly demonstrates a rehabilitation of character in the Petitioner. This rehabilitation, coupled with the showing that he is competent and capable of practicing medicine with reasonable skill and safety, shows that his new licensure in Florida would pose no risk to its citizens but rather would be a benefit to them. Counsel for the Board apparently avers that the Petitioner unrealistically claims that the Florida Board of Medicine, and its counterparts in other states, are engaged in some covert conspiracy to continue to deny him licensure, to impair his professional standing and medical practice. Questions by counsel, however, as well as those by the Hearing Officer, reveal that, although it is granted that the Petitioner has a great deal of emotional investment and anguish resulting from his multiple bouts with his licensure restrictions, that he really intended to explain in his testimony, in an imperfect way, that his licensure problems in the other states are interrelated with the root disciplinary action in Florida and that the Florida disciplinary action and the federal conviction, has had a legally operative effect with the medical practice acts in the other named states which cannot be cured until his licensure status in Florida can be restored. The Hearing Officer does not find from the testimony and evidence that the Petitioner has an unrealistic thought process leading to a perception on his part that there is a real conspiracy between the medical boards of the various named states or any of their personnel. The Respondent also appears to take the position that the Petitioner cannot truly demonstrate rehabilitation unless he comes before the Board to express apology and contrition for his past conduct, and it decries his remonstrances concerning his disciplinary record. In fact, however, the Petitioner does not deny the past disciplinary actions, although he did seek to explain their circumstances in an exculpatory way. On one level, it might seem a valid criticism that the Petitioner expresses no contrition or apology for his past conduct. On the other hand, he appears to genuinely believe in his innocence or at least his lack of moral turpitude concerning his disciplinary circumstances. This genuine belief on his part has motivated him to resist expressions of apology to the Florida Board, while exercising every available remedy to overturn the disciplinary action. This fact supports an inference that he is a man who has adhered to genuinely- held convictions, even through years of professional and personal adversity such a stand may have imposed upon him; rather than to "kowtow" to expediency and, by humble contrition, surrender those convictions simply to facilitate his re-entry into a lucrative profession in Florida. Given the preponderant evidence adduced by the Petitioner in this proceeding, such a lack of expressed apology or contrition evinces more of strong character than a lack of rehabilitation. In any event, the Petitioner has certainly already suffered sufficiently for any such lack of contrition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor, demeanor and credibility of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the license to practice medicine in the State of Florida of Harry Meyer Katz, M.D., be reinstated. DONE AND ENTERED this 28th day of June, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 28th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2797 Petitioner's Proposed Findings of Fact 1-25. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-14. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto. 16-18. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely consonant with the preponderance evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not itself dispositive of the material issues presented. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749 Michael A. Mone, Esquire Gregory A. Chaires, Esquire Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
