The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Sylvester Brown, was subject to discrimination in employment for the reasons alleged in the Petition.
Findings Of Fact The Petitioner, Sylvester Brown, was terminated from his position as Laborer, position number 51343, within the Facilities Operation and Maintenance Department of Florida State University (FSU) on October 7, 1999, for violation of a Last Chance Agreement and absence without authorized leave. The Petitioner had been employed by FSU for 24 years. Petitioner's Disciplinary Violations Leading to Termination Attendance is a critical element of the Laborer's job because departmental productivity depends on the reliable availability of employees. The Petitioner received a copy of Rule 6C2-4.070, Guidelines for Disciplinary Action, Rules of the Florida State University Administrative Code on January 29, 1988, which provided notice to the Petitioner of FSU's standard of conduct and the associated penalties for violation. The Petitioner was cited for numerous disciplinary infractions prior to his dismissal. The Petitioner's work history documents a consistent trend of absences which grew progressively worse over time. A list of documentation in evidence, exhibiting disciplinary action taken by FSU against the Petitioner includes: A three day suspension for Absence Without Authorized Leave (AWOL) and Excessive Absences, dated January 3, 1997. A written reprimand for Excessive Absences and AWOL, dated August 6, 1996. An oral reprimand for excessive absences, dated April 26, 1996. 1996. A written reprimand for AWOL, dated February 29, A written reprimand for AWOL, dated August 14, 1991. A written reprimand for excessive tardiness, dated June 5, 1989. A written reprimand for excessive tardiness, dated February 22, 1989. A written reprimand for excessive tardiness, dated July 8, 1988. A written reprimand for AWOL, dated May 25, 1988. The Petitioner was cited for excessive tardiness in an official written reprimand dated July 8, 1988, and the Petitioner was again reminded that his performance hindered the department's ability to perform its function. An oral reprimand for excessive tardiness, dated January 28, 1988. An oral reprimand for misuse of state property and equipment, dated July 11, 1985. A written reprimand for misuse of state property and equipment dated March 21, 1984. A written reprimand for excessive absences, dated February 7, 1984. A written reprimand for AWOL and misuse of state property and equipment dated, January 25, 1983. A three day suspension for AWOL, dated July 27, 1981. A written reprimand for AWOL, dated July 13, 1981. The Petitioner was directed in an August 14, 1991, written reprimand to phone his supervisor as close to 8:00 a.m. as possible on days he would be unable to report to work. The Petitioner was reminded in the February 29, 1996, written reprimand of the policy requiring employees to provide supervisors with advanced notice or documentation for leave to be authorized. The Petitioner was informed on April 26, 1996, that his absences, both excused and unexcused, exceeded established attendance and leave standards. Specifically, from January through April, the Petitioner used 33 hours of annual leave, 31 hours of sick leave, and 29 hours of leave without pay. FSU notified the Petitioner that his absences and sick leave totaling 33 hours during the period from April 26, 1996 to August 6, 1996, were deemed excessive and in contravention of departmental standards. The Petitioner was also cited for six hours of being absent without authorized leave. The Petitioner's chronic absenteeism did not improve. The period from August 6, 1996 through January 3, 1997, witnessed 46 hours of sick leave or unauthorized leave on the Petitioner's part. An inventory of the Petitioner's absences following his suspension from January 7-9, 1997 until August 22, 1997, catalogued 56 hours of sick leave, 16 hours of leave without pay and two hours of absence without authorized leave. This amount of leave was "considered to be excessive and completely unacceptable." [Id.] Further, the university did not receive any medical excuses for the Petitioner's use of sick leave during this period. [Id.] Counseling was provided to the Petitioner by FSU regarding the use of sick leave on August 17, 1998. An examination of the Petitioner's attendance revealed that he used 63 hours of sick leave from February 20, 1998 through August 6, 1998. [Id.] The university's standard for the same period of time was 33 hours of sick leave. [Id.] The Petitioner was further advised by FSU that he would not be compensated for three consecutive absences or three absences within a 30-day period without proper medical documentation. FSU assessed the Petitioner's attendance from January 8, 1998 through August 6, 1998, by comparing the standard allocated for sick leave to the Petitioner's actual use of sick leave. The sick leave standard for employees for the period under review was 44.16 hours whereas the Petitioner expended 67 hours of sick leave. [Id.] The record establishes that the Petitioner was warned 17 times in writing through reprimands, memorandums, and counseling notices dating back to 1981 that absenteeism was punishable under university employee disciplinary standards. Tardiness and absenteeism are, in fact, grounds for dismissal under the FSU Handbook for Employees. The Petitioner was warned twice in writing that failure to rectify his recurring absenteeism could result in his dismissal. Petitioner's Termination The FSU's Guidelines for Disciplinary Action are based on the concepts of progressive and cumulative discipline. The Disciplinary Guidelines outline standards to apply for punishable offenses to ensure similar treatment. Ms. Susannah Miller, Manager of Employees Relations at FSU, testified that the Petitioner's personnel file revealed the worst case of absenteeism she has seen at FSU. Excessive absences is defined in the Guideline for Disciplinary Action as "an attendance record of recurring absences, even though all or a majority of the absences were necessary and excused." Dismissal is allowed as proper punishment for an employee's fourth violation of the excessive absence rule. FSU notified the Petitioner of its intention to terminate him for excessive absences, effective on or shortly after October 12, 1998. In lieu of firing the Petitioner, FSU elected to allow the Petitioner to enter into a "Last Chance Agreement" (LCA) with FSU to avoid dismissal. Ms. Miller stated that Last Chance Agreements allow a final opportunity for employees to improve their performance. Ms. Miller further testified that to her knowledge FSU has never retained any employee that violated a Last Chance Agreement. The Last Chance Agreement required the Petitioner to (1) obtain prior written approval of requests for annual leave or leave without pay; (2) follow departmental policy and call-in between 8:00 and 8:30 a.m. and speak personally with his supervisor or proper designee if he was sick and unable to report to work; and (3) agree that violation of any LCA provision would result in immediate termination for cause. The Petitioner violated the Last Chance Agreement when he did not report for work on August 27, 1999, because he neither obtained prior approval for the absence nor followed the call-in procedure. The Petitioner also failed to provide any documentation justifying his absence. The Petitioner was in violation of the Last Chance Agreement on August 31, 1999, when he was tardy without permission and failed to follow the call-in procedure. The Petitioner's breach of the Last Chance Agreement is even more egregious because he collected his paycheck prior to work and could have easily informed his supervisor or the designee that he needed leave that day. In addition to violating the terms of the Last Chance Agreement, the Petitioner was also AWOL on August 27 and August 31, 1999. AWOL is "failure to obtain approval prior to any absence from work" and is punishable by dismissal for the third occurrence. The Petitioner admitted that he violated the Last Chance Agreement. On September 15, 1999, FSU informed the Petitioner of its decision to terminate him for violating the Last Chance Agreement and absence without authorized leave. The Petitioner was dismissed on October 7, 1999. Petitioner's Step One Grievance was denied on December 13, 1999. FSU's decision to terminate the Petitioner for violation of the Last Chance Agreement and absence without authorized leave was upheld by the State University System of Florida in its Step Two Grievance decision. Petitioner's Injury The Petitioner's Position Description reveals that lifting is an integral part of a laborer's duties. The Petitioner's 1995 Position Description allocates 85 percent of the job's essential function to lifting, moving and arranging university property and requires that the laborer be able to lift 30 pounds. The Petitioner sustained a back injury at work on September 4, 1997. The Petitioner's job duties changed as a result of the injury and he was tasked with inspecting fire extinguishers from September 10 through November 12, 1997. A physical capacity assessment performed on the Petitioner indicated that he was capable of performing at a medium demand level. The Department of Labor defined medium demand as capable of lifting 50 pounds and pushing and pulling 50 pounds. The Petitioner was temporarily re-assigned to the Grounds Section of the Facilities, Operations and Maintenance Department on December 23, 1997. The Petitioner testified that his job function involved re-cycling. The Petitioner's assignment in the Grounds Section was light duty and he was informed that his job duties could be modified after his physician reviewed the physical capacity assessment. Dr. Alexander, the Petitioner's physician, declared the Petitioner fit for medium demand duty with a 35-pound lifting limit on March 24, 1998. Robert Pullen, American Disabilities Act Coordinator at FSU, was directed by Carolyn Shackleford, under the University's Reasonable Accommodation Policy, to ensure that the Petitioner's job activities with the Grounds Section did not exceed the 35p-pound lifting threshold. The Petitioner never contacted Mr. Pullen's office regarding reasonable accommodation. Mr. Pullen determined that the Petitioner's duties did not violate the lifting restriction and were in full compliance with the accommodation policy. The Petitioner testified that he could lift 35 pounds repetitively. The record reflects no evidence of age discrimination committed by the Respondent against the Petitioner. The record indicates no evidence that the Petitioner was terminated due to his race. The Petitioner presented no evidence or testimony regarding retaliation by FSU.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
Findings Of Fact Respondent was employed by Petitioner from December, 1982 to December, 1987 as a tariff clerk, a permanent career service position. On September 23, 1987 Respondent became ill and left work without informing her supervisor, Jill Hurd, or her co-workers. Hurd was available on September 23 and 24, 1987 if Respondent had tried to explain her absence or request leave authorization. Respondent presented Health Status Certificates to Petitioner signed by M. R. Grate, Jr., M.D., dated October 30, November 11 and 18, 1987 which certified her inability to return to work from October 27 through November 30, 1987, during which time she was under his care. On the basis of these certificates, Petitioner authorized her sick leave from October 27 to November 30, 1987. Respondent did return to work on December 2, 1987, but was again absent on consecutive work days of December 3, 4 and 7, 1987. On December 3, 1987, Respondent sent a note to Hurd, via her husband, stating she did not feel well and would not be in to work. On December 4, 1987 her husband again brought Hurd a note stating Respondent would not be in because her baby was ill. Respondent's husband called Hurd on December 7, 1987 to state that she was still ill and would not be in to work. Hurd stated that Respondent needed to get back to work. At no time did Respondent request leave for December 3, 4 and 7, 1987, nor was she approved for leave. She simply informed her supervisor, Hurd, through her husband that she was not coming to work each day. Prior to these unauthorized absences in December, 1987, Respondent had received a memorandum from Hurd on January 14, 1987 setting forth specific instructions for calling in sick following a number of unauthorized absences. Respondent was specifically instructed to call her supervisor, Hurd, each morning by 8:30 a.m. when she wanted to take sick leave. Despite this instruction, Respondent never called Hurd on December 3, 4 and 7, 1987, but simply had her husband deliver notes and messages to Hurd on her behalf. This prevented Hurd from discussing with Respondent the extent of her illness and when she expected to return to work. On November 25, 1987 Respondent had an appointment with Dr. Grate, who signed another Health Status Certificate for the period November 30 to December 11, 1987 indicating she remained under his care and was still unable to return to work. However, despite the fact she did report to work on December 2, 1987 and had been given specific instructions about how to apply for sick leave, she never presented Dr. Grate's Health Status Certificate dated November 25, 1987 to Hurd, or anyone else associated with Petitioner, until the hearing in this case. Therefore, Respondent did not present proper medical certification of illness for December 3, 4 and 7, 1987, and instead simply failed to report to work, or to in any way attempt to personally contact her supervisor. A letter dated December 7, 1987 notifying Respondent of her abandonment of position and of her right to a hearing was sent to Respondent from Petitioner's Executive Director by certified mail, return receipt requested. Respondent's husband signed for this letter on December 9, 1987, and Respondent acknowledges receipt.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter Final Order concluding that Respondent has abandoned her position with Petitioner in the career service due to her failure to report to work, or request leave, for December 3, 4 and 7, 1987. DONE AND ENTERED this 15th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN 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 March, 1988. APPENDIX (DOAH Case No. 88-0161) Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Findings of Fact 4, 7. Adopted in Findings of Fact 5, 6, 7. Adopted in Findings of Fact 7, 8. Adopted in Findings of Fact 5, 6. Adopted in Findings of Fact 7, 8, 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact cannot be made since her post-hearing submission shows no indication that a copy was provided to counsel for Petitioner, despite specific instruction at hearing, and the narrative contained in her letter consists of serial unnumbered paragraphs which primarily present argument on the evidence rather than true proposed findings of fact. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William S. Bilenky, Esquire Public Service Commission 212 Fletcher Building Tallahassee, Florida 32399-0850 Harold McLean, Esquire Public Service Commission Office of General Counsel 101 East Gaines Street Tallahassee, Florida 32399 Norma D. Saabir P. O. Box 5802 Tallahassee, Florida 32314-5802 =================================================================
The Issue Whether Respondent employer is guilty of an unlawful employment practice (discrimination under Section 760.10, Florida Statutes) against Petitioner on the basis of his race (Black/African-American), handicap, or retaliation, and if so, what is the remedy? Although cases arising under the federal Americans With Disabilities Act (ADA) may be instructive for interpreting and applying the handicap provisions of Chapter 760, Florida Statutes, Petitioner's claim under ADA and any allegations of libel and slander are not within the jurisdiction of the Division of Administrative Hearings.
Findings Of Fact Petitioner, Lawrence James, Jr., is a Black/African- American. Respondent, The Alachua County Department of Criminal Justice Service, is an "employer" within the definition in Section 760.02(7), Florida Statutes. Respondent operates the Alachua County Jail. Respondent maintains a paramilitary command, advancement, and ranking system for its employees. Petitioner began his employment with Respondent as a Correctional Officer and rose to the rank of Sergeant. On March 2, 1994, an inmate escaped from the Alachua County Jail during the evening shift. As a result of the inmate's escape, several correctional officers were disciplined. Petitioner was disciplined by a reduction in rank April 26, 1994. (P-37) There were allegations that harsher discipline had been meted out to the Black/African-American officers, and the matter was arbitrated, pursuant to the union collective bargaining contract. As a result of the arbitration, in the summer of 1994, it was recommended that Petitioner be returned to his position at the Jail with restoration of rank, but without any back pay. However, at the time of that recommendation, Petitioner already had been terminated for "a non-related infraction of county policy." (P-37) The "non-related infraction of county policy" reason for Petitioner's 1994 termination was not established on this record, but neither was any discriminatory reason proven.2 After Petitioner's 1994 termination, further proceedings ensued, and Petitioner was ultimately restored to his rank and position at the Jail. As part of this restoration, it was agreed the Respondent employer would conduct training and re-orientation sessions for Petitioner, since he had not actively been performing his duties at the Jail for approximately two years. The present case only addresses the discrimination Petitioner allegedly suffered due to race, handicap, or retaliation concerning his leave requests in 1996, and his 1997 termination for unauthorized absence. After his second successful arbitration(s) and/or grievance procedure, Petitioner was eligible to return to work on February 19, 1996. He did not return on that date. Respondent ordered Petitioner back to work on March 13, 1996, at which time Petitioner requested, and was granted, leave under the Family Medical Leave Act (FMLA). It is not clear if Petitioner ever made Respondent aware that he suffered from high blood pressure, but from the evidence as a whole, it is found that Petitioner notified Respondent in March 1996, that he was suffering from a prior on- the-job injury to his back, diabetes, and depression. Diabetes, as experienced by Petitioner, is a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. Clinical depression, as experienced by Petitioner, is a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. Petitioner contended at hearing that his clinical depression in 1996 was due to his 1994 demotion and termination and the procedures to get his job back and also due to the hostile work environment he anticipated he would face if he returned to work daily in 1996 with people whom he perceived as having lied about him and who had tried to terminate him. It should be noted that Petitioner did not clearly include "hostile work environment" in either his 1998, Charge of Discrimination or his 2000, Petition for Relief. The Florida Commission on Human Relations only considered and referred the instant case upon allegations of discrimination on the basis of race, handicap, and retaliation. From Petitioner's description of his back ailment, it is found that condition also constituted a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. From Petitioner's description of how his back injury affected his daily life and job performance, it is very doubtful that Petitioner was able to physically fulfill the requirements of being a jailor at any time in 1996 until he was terminated in 1997. No evidence was presented with regard to the workers' compensation consequences of this situation. By an April 1, 1996, letter, Respondent's Interim Director of Criminal Justice Service, Richard Tarbox, informed Petitioner that he had exhausted his sick leave credits as of the pay period ending March 31, 1996; that based on Respondent's records, Petitioner would exhaust the balance of his accrued sick leave at the rate of forty hours per week during the pay period ending May 12, 1996; that he was expected to know his available accrued leave credits and to contact his immediate supervisor at least one week prior to the expiration of the current leave period to request leave without pay if he anticipated not returning to work; and that he had been placed on FMLA leave for an indefinite period, not to exceed twelve weeks, which would expire on June 6, 1996. (R-30) The April 1, 1996, letter specifically informed Petitioner that failure to come to work or contact Respondent could be considered abandonment of his position. (R-30) The foregoing instructions concerning "abandonment of position" parallel Alachua County's Personnel Regulations and Disciplinary Policy, hereafter sometimes referred to collectively as "personnel regulations." (P-1). Chapter XIX. 3. OFFENSES AND PENALTIES; c. Group III Offenses No. 8, at pages 5-6, of the personnel regulations had existed prior to Petitioner's 1994 termination, and was in effect at all times material. It provided, Absence of three consecutive work days without proper authorization at which time the employee is considered to have abandoned the position and resigned from the County's employ. The personnel regulations also provided in Chapter XIX. 3. OFFENSES AND PENALTIES; a. Group I Offenses No. 8, at pages 3-4, that the following offense would subject an employee to progressive discipline: Absence without authorization or failure to notify appropriate supervisory personnel on the first day of absence. (Emphasis supplied). This regulation also had remained unchanged since Petitioner's last employment with Respondent in 1994, and was in effect at all times material. Progressive discipline for the first such offense was written instruction, counseling and/or one-day suspension. For the second occurrence, one to five days' suspension was specified. For the third occurrence, up to five days' suspension or discharge was specified. These provisions also had remained unchanged since Petitioner's last employment with Respondent in 1994 and were in effect at all times material. Petitioner was also familiar with the long-standing progressive discipline system of Respondent's personnel regulations. Basically, this system required that discipline first be proposed in writing by a superior. The proposed discipline would go into effect and become actual discipline if the employee did not appear at a hearing to dispute the charges or the proposed discipline. If the employee prevailed at the hearing, the proposed discipline would be rescinded or altered. If the employee did not prevail, the proposed discipline would be reduced to writing in another document, and the employee then had the option of filing a grievance pursuant to the union collective bargaining agreement or of appealing through the personnel system to a citizens' board. While Petitioner had been absent in 1994-1996, a new requirement had been added to the personnel regulations, under Chapter A-299, which required that employees who planned to be absent, must notify their immediate supervisor no later than 30 minutes from the time they are scheduled to report for work. (Emphasis supplied) The "immediate supervisor" or "appropriate supervisory personnel" in Petitioner's situation would have been the lieutenant on his shift. However, Petitioner and Lt. Little, who became his supervisor, concurred that the custom at the Jail always had been to require that employees contact the shift sergeant on the shift preceding an emergency absence, or if that were not possible, to contact the employee's own shift sergeant or anyone else on that shift. Jail custom also provided that the employee who was going to be absent could rely on any person on his shift to deliver his oral message to the employee's supervising lieutenant and that approval or disapproval paperwork would be handled by that lieutenant after notification. On June 6, 1996, Petitioner still had not returned to work. Instead, he requested leave without pay until June 15, 1996. Respondent granted Petitioner's request. This constituted an accommodation of Petitioner's handicap(s) in that he had no remaining earned leave or entitlement to FMLA leave, yet his employer held his position open for his return. On or about June 10, 1996, Anthony F. Greene, Ph.D., a clinical psychologist at Vista Pavilion, a free-standing psychiatric facility, released Petitioner to return to work. He wrote to Respondent's Risk Manager that Petitioner continued to have problems with depression, which might prove "volatile" in a work environment with superiors Petitioner believed had harassed him by terminating and blaming him for the 1994 escape. At approximately the same time, Richard Greer, M.D., medical specialty unexplained, also released Petitioner to return to work, upon the conditions that Petitioner continue to see Dr. Greene on a weekly basis and continue to take his prescriptive medications. By a July 17, 1996, letter (P-4), Interim Director Richard Tarbox notified Petitioner to report for work at the Jail on the evening shift of July 22, 1996. The letter required Petitioner to continue his sessions with Dr. Greene; to continue to take his prescriptive medications; and to take the re- training and re-orientation specified as a result of the resolution of his 1994 termination and return to work. (See Finding of Fact 7.) The July 17, 1996, letter also included the sentence, We are in the process of contacting Dr. Greene to establish a procedure to verify that you continue your sessions with him. Petitioner interpreted this sentence as the employer's promise "[T]o get all my leave slips, find out when I was going to the doctor, my mental condition, and also my medical condition." (TR-Vol.II, pages 175-176) Petitioner's interpretation of this sentence was unreasonable in light of its express language, the context of the remainder of the July 17, 1996, letter, the instructions of the April 1, 1996, letter (See Findings of Fact 16-17), and what Petitioner already knew of the County's personnel regulations and/or the Jail custom requiring him to call in and/or apply for leave to be subsequently approved or disapproved by his supervisor. Nothing in the July 17, 1996, letter altered the requirements of the personnel regulations or the April 1, 1996, letter. Petitioner bore the responsibility to ask for medical leave sufficiently in advance of his absences. On July 22, 1996, Petitioner reported for work at the Jail as instructed and was assigned to an evening shift supervised by Lt. Stover. According to Sgt. Babula, Petitioner also worked under Shift Sgt. Withey at some point in July 1996. However, by July 1996, Petitioner was an insulin- dependent diabetic. He needed to self-administer a shot of insulin each morning and night. To ensure ideal spacing of these two shots, Petitioner almost immediately requested to work the day shift. Respondent accommodated this request concerning Petitioner's handicaps and assigned him to the day shift under Lt. Little and Sgt. Babula, as shift sergeant. Petitioner claimed his handicaps were not accommodated by Respondent, but in addition to approving leave for him from February 19, 1996, to July 22, 1996, not replacing him during that period, and the change of shift made in July 1996, at Petitioner's request, Sgt. Babula testified to approving special shoes for Petitioner due to his diabetes. By September 1996, Petitioner again had used up all of his accrued leave. Accordingly, he had to ask for leave without pay to visit his various doctors, including Dr. Greene. On September 9, 1996, during a therapy session, Petitioner told Dr. Greene that he had been threatened on the job and that he was pursuing resolution of the incident through appropriate channels. The same day, Dr. Greene wrote to Lt. Little, telling him of the threat. The nature of this alleged threat or who made it was not stated in Dr. Greene's letter or at hearing. The letter cleared Petitioner to return to work September 12, 1996. This out-of-court statement to his psychotherapist at that time does not establish the truth of the statement or that Petitioner's superiors made the alleged threat. Also, the threat, if one existed, could not have related to Petitioner's written leave requests, because Petitioner's earliest dispute about leave did not occur until September 13, 1996. (See Finding of Fact 41). The September 9, 1996, date was not related by testimony to any oral or written request for leave or any disciplinary matter in evidence. Petitioner testified to having been threatened on the job sometime prior to September 9, 1996, but he never testified what the threat was, why the threat was made, or by whom the threat was made. Petitioner's witness, Alfred Dickerson, also is African-American. He testified generally that it was "pure hell" at the Jail for anyone who, like himself and Petitioner, had been disciplined due to the 1994 escape and who had prevailed in the resultant grievance activities, but he could not remember any specific incidents involving Petitioner. Moreover, Mr. Dickerson was out of the Jail, on workers' compensation leave, from May 1996 to October 1997, the whole of the material time frame for this case.3 On September 16, 1996, Petitioner submitted an "after the fact" request for leave without pay to Lt. Little, his supervisor, for the previous dates of September 13 and 15, stating thereon that he had been ill those days and that the request was being made because his request to work his days off to make up for the 16 hours of leave he had used on September 13 and 15 had been denied. The request does not specifically mention "flex time." (P-6) "Flex time," as described by both Petitioner and Lt. Little, would have permitted Petitioner to work his days off, instead of taking time off without pay to make up time used to go to his doctors on days he was scheduled to work. However, if an employee asked to use flex time in this way, another employee had to trade days with him, and the exchange would be worked out by the supervising lieutenant. On October 1, 1996, Petitioner was given a "Letter of Warning" by Lt. Little. The Warning reflected that Petitioner's advising a sergeant other than his immediate supervisor, Lt. Little, on September 24, 1996, that he was not coming to work until some personal matters were taken care of, was insufficient notice and was being treated as "absence without authorization" in violation of the personnel regulations. It also stated, It has been standard practice and understood that you must notify your immediate supervisor . . . please be advised that any further violations of this nature may result in docked pay and progressive disciplinary action . . . Attached to this document was a Notice of Disciplinary Action, also prepared October 1, 1996, stating, Disciplinary action taken as a result of the Notice of Proposed Disciplinary Action dated blank not filled in. (Except for WARNING) WARNING (Reasons for warning): Violation of Alachua County Personnnel Regulations, Chapter XIX, Section 3, a., Group I, Offense No. 8 'Absence without authorization'. (P-8) The same document notified Petitioner that he had a right to appeal the Warning pursuant to either the personnel regulations or the grievance procedure in the collective bargaining agreement, as appropriate. Petitioner did not acknowledge receipt of this latter document until October 7, 1996. (P-8/R-19) Also on October 1, 1996, Petitioner submitted an "after the fact" request for leave without pay for September 23- 26 and for September 29-30, to Captain King. The reason for Petitioner's absence September 23-26 was not stated on the formal request, but Petitioner did again state thereon that his request to "flex" his days off had been denied, presumably by Lt. Little. The time for September 29-30 was requested for "personal business and emergency family leave without pay" due to his mother's seeing a doctor about her detached retinas. (P-7) Respondent is not obligated under Chapter 760, Florida Statutes, to accommodate Petitioner's family's handicaps.4 On October 21, 1996, a "Notice of Proposed Disciplinary Action" was issued by Lt. Little, apparently covering the same date, September 24, 1996, as his October 1, Warning, and adding other dates. The reasons for the proposed discipline given in this October 21, 1996, Notice differ slightly from the content of the October 1, Warning. The October 21, 1996, Notice related that on September 23, Petitioner had spoken to Captain King and Lt. Little, and because his request for leave had been made in advance, Petitioner had been granted the day off; that on September 24, Petitioner had failed to report to work and failed to request an extension of leave, and he was therefore considered to be "absent without authorization" for September 24, 1996. The October 21, Notice further stated that on September 25, Petitioner had called Captain King, requesting leave without pay for September 25 and 26, and because Petitioner had requested leave in advance, Captain King had granted the request covering those two days, but that on his October 1, leave request (see Finding of Fact 44) Petitioner had included two more days, September 29 and 30, which had not been previously authorized. Finally, the October 21, Notice indicated that on September 30, Petitioner had called Lt. Stover to say that he would be reporting to work as soon as he was through testifying to the Grand Jury that afternoon, and that his failure to request leave in advance was being treated as "absence without authorization and failure to request leave without pay in advance." As of this October 21, 1996, Notice, the proposed disciplinary action became suspending Petitioner without pay. Petitioner was offered an opportunity to contest the proposed disciplinary action at a hearing on November 19, 1996. Petitioner acknowledged receipt of this document on October 24, 1996. (R-21) On October 22, 1996, Petitioner wrote to the Interim Director of the Jail, Richard Tarbox. In his letter, Petitioner complained that he had not yet received the agreed re- orientation and re-training. He also discussed his medical problems, including problems with recent changes in his medications and his five-year-old back injury. He requested flex time and related that his life had been threatened by employees on the job (see Findings of Fact 37-40), and that Lt. Little had been informed of the threats and flex time request, but the letter again did not indicate by whom Petitioner was threatened or why. (P-10) Despite Petitioner's after-the-fact written requests for flex time, Lt. Little had no recollection of Respondent ever asking him for flex time. There is no evidence that Lt. Little, Mr. Tarbox, or any other representative of Respondent contacted Petitioner concerning the alleged threat against him or specifically addressed the issues of re-orientation/re-training or flex time. On October 25, 1996, Dr. Greene also wrote Mr. Tarbox. He described Petitioner as cooperative and not evidencing any inappropriate behavior. He reported that Petitioner had voiced no homicidal or vengeance ideation to him. He felt that Petitioner's supervisors' requirement that Petitioner use leave to attend the mandatory therapy sessions with him constituted a paradox and a stressor for Petitioner. He felt that other stressors were the employer's failure to offer re-orientation/ re-training to Petitioner and the employer's failure to contact him, Dr. Greene, to verify treatment purposes and schedules. Dr. Greene requested that Mr. Tarbox clarify Petitioner's treatment and work status to both him and to Petitioner in a timely manner because not doing so was exacerbating Petitioner's physical condition, headaches, and diabetes. He further stated that he could release Petitioner for work without further psychological treatment and that further psychological treatment was not necessary to ensure Petitioner's fitness for work or to prevent his being a risk to others, but that Petitioner would continue in therapy for other purposes. (P-11) Neither Mr. Tarbox nor any other representative of Respondent specifically replied to Dr. Greene's October 25, 1996, letter. However, all leave disputes pending on that date were addressed in a November 22, 1996, letter to Petitioner from Captain King. (See Findings of Fact 57-59.) On October 31, 1996, Petitioner submitted an "after the fact" request for eight hours leave without pay for leave he had taken on October 30, 1996, for "emergency dr. app't for work related injury, and lab work for diebetic [sic] condition." (P-14) At some point, a leave form for eight hours leave without pay on November 9, 1996, was prepared. It indicates that Petitoner was "unavailable to sign." This form was disapproved by Lt. Little and by Mr. Tarbox on November 12, 1996. Apparently Petitioner only signed the request on November 26, 1996. (P-21) On November 14, 1996, Petitioner submitted a request for two hours leave without pay for November 15, 1996, for "work related condition, Dr. Greene." (P-15) On November 19, 1996, Petitioner submitted a request for two hours leave without pay for November 22, 1996. The request was approved by a supervisor on November 19, 1996. (P-17) On November 22, 1996, Captain King issued a "Letter of Warning" to Petitioner. It stated that on November 19, 1996, a disciplinary hearing had been held (see Finding of Fact 47) regarding the October 21, Notice of Proposed Disciplinary Action, addressing Petitioner's absences on September 29-30, 1996, and that because Petitioner had proven that he had attempted to contact his supervisor in advance of his absence, the September 29 violation was being withdrawn. With regard to the September 30 violation charged, it was found that Petitioner had contacted Lt. Stover and informed him that Petitioner would return to work after testifying before The Grand Jury, and since Petitioner had not returned to work on that day after testifying, he was being found guilty as charged for violation of Alachua County Personnel Regulations, Chapter XIX, Section 3. a. Group I, Offense No. 8, "Absence without authorization and failure to request leave without pay in advance." The November 22, 1996, letter went on to warn Petitioner that future violations would be more carefully scrutinized for strict adherence to the policy of notification and that failures on Petitioner's part might result in progressive disciplinary action being taken. (P-20) Because prior discipline had been overturned or rescinded, the November 22, 1996, Letter of Warning was technically Petitioner's first violation/discipline. Also on November 22, 1996, Petitioner submitted to Lt. Little a leave request form, dated the same day, labelled "FOR INFO.," with supporting documentation, including Dr. Hunt's certificate showing Petitioner had been treated on November 4, and November 22, 1996, had office management of HTN/NIDDM hematuria, a pending IVP and urology consult, and would need to be seen again by Dr. Hunt in 4-6 weeks. The language of one attachment showed Petitioner "is under Dr. Hunt's continual care," but nothing specified any period of time Petitioner intended to take off from work for the pending consultation or any other purpose. (P-19) Petitioner testified that his November 22, 1996, leave request was not intended to request any leave at all when he submitted it, but that it should have alerted his supervisors that Petitioner had a growth between his legs that was potentially malignant and that he needed an operation sometime in the future. A reasonable person would not have concluded this from the four corners of the November 22, 1996, written request with attachments dated for past medical appointments. Petitioner also testified that by submitting the November 22, 1996, leave request "in blank" and explaining orally to Lt. Little what he intended to do was his effort to comply with the requirement that he ask for leave in advance of taking it. This testimony shows that Petitioner at this point understood the employer's prior instructions to request leave in advance. Apparently, Petitioner envisioned only having to phone in to get any member of his shift to fill in the blanks on his November 22, 1996, request form, but he admitted he had never before used a blank leave request in this way. Petitioner further testified that he had told Mr. Tarbox and other supervisors at a meeting (probably one of his disciplinary hearings) before Christmas 1996, that he "did not know how long he could work." While this representation of Petitioner is credible and it may be reasonably inferred that Mr. Tarbox understood Petitioner was debilitated to some degree by the growth and might need an operation sometime in the near future, it does not logically follow that all those hearing Petitioner at that time understood that his oral statement related to the November 22 blank leave request which had attached to it only information about past doctors' appointments and potential, undated, future consultations. Petitioner's vague statement at the meeting/hearing did not comply with the letter of the personnel regulations nor the custom at the Jail for requesting leave. The blank November 22, 1996, leave request marked "FOR INFO" also did not comply with the letter of the personnel regulations nor the custom at the Jail. There is no requirement that Respondent grant Petitioner an open-ended request for leave or one that specifies no time period at all. Petitioner's November 22, 1996, blank leave request was never approved. On November 26, 1996, Petitioner also acknowledged receipt of a "Notice of Proposed Disciplinary Action," by which Lt. Little and Mr. Tarbox recommended that Petitioner be suspended without pay.5 Petitioner was again offered an opportunity to contest this proposed disciplinary action at a hearing on December 3, 1996. (P-18) The record is silent as to whether a disciplinary hearing was actually held on December 3, 1996. Petitioner submitted a leave form on December 6, 1996, for 2.5 hours "vacation" leave without pay on December 3, 1996, for a "Conference with doctor to try an [sic] stop continued disciplinary action because of illness doctor approved." (P-23) On December 3, 1996, Petitioner had telephoned Lt. Little to ask if his message had been received. He then reported to work at 10:00 a.m. Respondent's business records (P-22) show the following: Petitioner worked December 4-5, some of December 6, and all of December 7, 1996. He was not required to be at work on December 8-9. He called in sick on December 10-11. On December 12, he reported for work and attended five hours of drug policy training. Then he left for medical reasons and later called in to say he was too sick to return to work. On Friday, December 13, Petitioner called in sick, saying he was going to the doctor for a cut foot. He later called in again and was told that he needed to do his timesheet and it was agreed he would do it and have it in the following Monday. Petitioner was absent on Saturday, December 14. He was not required to be at work on December 15-16, 1996. On Monday, December 17, Petitioner did not phone or appear for work. On December 18, Petitioner phoned in, saying he had to wear bedroom slippers and had domestic problems. On December 19, Petitioner called in late and left a voice message on the Jail phone. On Friday, December 20, Petitioner called in on time but said he would not be in until Tuesday of the following week. He gave no reason. He was not required to be at work on December 22-23. On December 24, 1996, Petitioner did not come to work or call in. On Christmas Day, Petitioner called in before shift and stated he would not be in that day or the following day, December 26, 1996, until 10:00 a.m. On December 26, December 27, and December 28, Petitioner did not report for work or call in. Petitioner was not required to work December 29 or 30, 1996. On December 31, Petitioner called and said that he would not be in that day but would call back to talk to the shift lieutenant. He did not do so. Also, Petitioner did not report for work or call in for January 1 through 4, 1997. Most of this business record was substantiated by the direct testimony of Sgt. Babula and Lt. Little who observed the events and wrote most of the business record. The matters that were not confirmed in their direct testimony were supported by the type of hearsay that explains or supplements direct evidence and is admissible in this type of proceeding. Petitioner acknowledged that the business record was essentially correct as to days he was absent in December 1996, and January 1997. Petitioner's testimony only varies the foregoing business record to the effect that on December 10, 1996, not December 13, 1996, Petitioner called and spoke with Sgt. Withey, stating that he would not "be back [to work] until [he had] seen and heard from [his] doctors," and related to Withey that he had some problem with his foot. Petitioner assumed that his superiors would get this message and would understand that he meant he was exercising the blank November 22, 1996, leave request. (See Findings of Fact 60-66). His superiors did not infer from this message what Petitioner had hoped they would. A reasonable person would not infer all that from the information Petitioner says he provided Sgt. Withey. It is uncontested that Petitioner did have an injury to his foot at this time and that such injuries can be particularly hazardous to persons who, like Petitioner, suffer from diabetes. From December 4, 1996, onward, Petitioner did not speak directly with his lieutenant, although he had been repeatedly instructed to do so in order to request advance leave. Petitioner did not return to work after December 7, 1996. Despite the personnel rules, custom at the Jail, and prior direct orders by warning and disciplinary action letters, Petitioner submitted no leave slips directly to his superiors after December 6, 1996. Instead, he submitted them to his union shop steward and to a County Commissioner, although he had no reason to believe the Commissioner had any authority over Jail personnel matters. Respondent never authorized leave for Petitioner after December 13, 1996. Petitioner's extended absence without authorization was in violation of Respondent employer's long-standing "three day abandonment rule." There had been no word from Petitioner since December 31, 1996, so between January 17 and January 24, 1997, a "Notice of Disciplinary Action" was issued against Petitioner for [V]iolation of Alachua County Personnel Rules and Regulations, Chapter XIX, Section 3, c., Group III, Offense No. 8 'Absence of three (3) consecutive work days without proper authorization at which time the employee is considered to have abandoned the position and resigned from the County's employ.' The proposed discipline was termination, and again, Petitioner was offered the opportunity to contest the proposed final agency action at a hearing to be convened on February 18, 1997. (P-25) Sometime in January 1997, Petitioner saw a Master of Social Work, because Dr. Greene was on educational leave. Petitioner was so upset that the social worker advised him to focus on his medical problems. Apparently, Petitioner leapt to the conclusion that meant his doctors would handle all his leave-related problems. Sometime in January 1997, Petitioner had successful surgery on the growth between his legs. On January 27, 1997, Dr. Greene saw Petitioner in therapy and notified Mr. Tarbox in writing that, Mr. Lawrence James was seen for an appointment today in my office. He is apparently unable to continue working in what is perceived to be a hostile work environment at the jail. Compounded by his medical problems and what seems to be a lack of responsivity and accommodation by the administration, Mr. James' level of emotional distress has considerably increased since our last communication. It is strongly recommended that he take a leave of absence from the workplace until his condition is improved. He is scheduled to return next week for continued intervention. Thank you for your time and attention. (Emphasis supplied) (P-26) Dr. Greene testified that it was Petitioner's combined mental and physical circumstances which caused him to recommend the leave of absence. The January 24, 1997, Notice of Proposed Disciplinary Action was mailed to the last address Petitioner had given Respondent. On January 30, 1997, Petitioner's mother signed the certified mail receipt for the January 24, 1997, Notice of Proposed Disciplinary Action. Sometime thereafter, she delivered the Notice to Petitioner, who no longer lived with her. He refused to deal with it. Dr. Brient removed a suture from Petitioner's leg on February 4, 1997. This seems to have related to Petitioner's post-surgery release after removal of the growth between his legs. Petitioner did not then return to work. Because Respondent's principals had not recognized Petitioner's mother's name on the certified mail receipt, they caused the January 24, 1997, Notice of Proposed Disciplinary Action to be served on Petitioner by a Deputy Sheriff. Petitioner received this personal service on February 5, 1997, and told the Deputy that he would not deal with the Notice of Disciplinary Action, but his doctors would. Having been released as a result of his operation, there was no physical reason Petitioner could not have appeared for the February 18, 1997, hearing to present any opposition to his proposed termination based on "the three day abandonment rule." He did not appear. On February 21, 1997, Petitioner was mailed a "Notice of Dismissal," effective that date and signed by Harry Sands, a new Interim Director, for abandoning his position, in violation of the personnel regulations. The Notice of Dismissal gave Petitioner the option of appealing his termination through the employee appeal system or the collective bargaining grievance procedure. Petitioner did not take either appeal route. However, Petitioner did suggest to another Jail officer that those who had done this to him might need to get a pine box, i.e. coffin. The threat was not deemed worthy of prosecution by the State Attorney's Office. Petitioner testified, without corroboration, that he never received the promised re-orientation or re-training associated with re-instatement to his job. No witness gave any clear indication of what the re- orientation and re-training, as contemplated by the re- instatement agreement (see Finding of Fact 7) or as contemplated by Mr. Tarbox's July 17, 1996, letter (see Finding of Fact 29), was supposed to include. Lt. Stover did not remember any specific training he gave Petitioner, nor did Lt. Little, but Lt. Little testified that he was present when, before Petitioner first arrived on Lt. Stover's shift in July 1996, the Captain had ordered them both to "bring [Petitioner] up to speed." Petitioner suggested that failure to re-orient and retrain him evidenced Respondent's discrimination against him. His post-hearing proposal also asserts that due to Respondent's failure to train him in "new" personnel regulations, combined with Respondent's requirement that he adhere to those regulations which Jail custom did not normally follow, constituted disparate treatment and/or discrimination against him on the basis of his race or due to retaliation, and/or failure to accommodate his handicap. This perception is unpersuasive in light of the employer's repeated correspondence urging him to take the training, whatever that training might have been. Despite Mr. Tarbox's failure to reply to Petitioner's October 22, 1996, inquiry about training (See Finding of Fact 48), Petitioner's perception of discrimination was not established as fact. From the evidence as a whole, it is more probable that any failure to train Petitioner was the result of his request to change shifts, and thus, lieutenant-supervisors in July or his frequent absences. The record does not make clear whether the re-orientation/re-training requirement was unique to Respondent, who returned in 1996, or applied to all four of the returning African-American officers restored in 1994, but Petitioner did not demonstrate that any White/Caucasian or non-handicapped employee ever got any more re-orientation/re-training than he did. He did not establish that any White/Caucasian or non-handicapped employee ever got any more re-orientation/re-training than the other restored African-American officers, handicapped or otherwise. He also did not establish that any other restored African-American officer, handicapped or otherwise, received more re- orientation/re-training than he did. Moreover, contrary to Petitioner's testimony, Sergeant Babula testified credibly that he had at least instructed Petitioner with regard to the new payroll forms when Petitioner changed shifts in July 1996. Payroll forms include calculating hours worked and monies owed. Testimony and business records also show Petitioner had five hours of drug policy training. (See Finding of fact 72). Also, Respondent did not discipline Petitioner for his failure to request leave of specific personnel as required by the only new personnel regulation, until after Petitioner had been instructed in writing to do so. These written instructions may not have constituted complete "re-orientation" or "re- training," but they were direct orders sufficient to instruct Petitioner what was expected of him. (See Findings of Fact 16, 29, 43, 46-47, 57-59). Lastly, based on Petitioner's testimony that even if he had known he was required by a new regulation to request leave from his lieutenant-supervisor he would not have followed that regulation but instead would have considered himself bound by his union contract and by the custom of asking for leave of anyone on his shift at the Jail, it appears that any failure of Respondent to specifically "train" Petitioner concerning new personnel regulations had no effect on his subsequent failure to comply with the employer's expectations concerning its leave policy. Petitioner had admitted in evidence a certified copy of a "Second Superceding Indictment" issued by a federal Grand Jury on February 27, 2001. It was not established that this was the same Grand Jury before which Petitioner testified in 1996. (See Finding of Fact 47). The indictment (which is only a charging document, not a conviction) named Nate Caldwell, Respondent's former Director; Samuel Krider, Respondent's former Assistant Director; Garry M. Brown, a former Captain with Respondent; and Charles Scott Simmons, a former Lieutenant with Respondent, for conspiracy to obstruct justice by violating 18 USC Section 1503, by hindering the court and jury in a federal civil rights action brought by Mr. Dickerson against the Alachua County Board of County Commissioners. Mr. Dickerson's federal case arose out of Mr. Dickerson's demotion in rank with Petitioner in connection with the 1994 escape. It was not established that any of the indicted officials held office during the time material to Petitioner's instant case, 1996- 1997, or that any of them had anything to do with Petitioner's 1996 leave disputes or 1997 termination. Indeed, it was established that Sands or Tarbox was Interim Director at all times material. The indictment mentions Petitioner and Captain King, a superior of Petitioner at all times material, but neither Petitioner nor Captain King were indicted. Despite the lack of clarity of Petitioner's and Mr. Dickerson's testimony, the undersigned infers from their testimony and the indictment that Petitioner testified concerning the same matters before the Grand Jury in 1996 and that prior to 1996 Petitioner had been a witness in Mr. Dickerson's federal discrimination case against the County Commissioners. However, Petitioner testified that his retaliation allegation herein is not based on his 1996 testimony before the Grand Jury. Rather, Petitioner asserted at hearing that he believed he had been retaliated against by his superiors in 1996-1997 for speaking at 1993 meetings of the County Commission concerning structural and staffing problems at the Jail, and otherwise he did not know why he had been retaliated against. (TR-Vol. I pp. 229-233).
Recommendation Upon 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 Petitioner has not proven discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2001.
The Issue The issue in these cases is: a) whether the Department of Education is liable for attorneys' fees and costs incurred in the prosecution of the Rushton case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should include those incurred in the prosecution of a rule challenge styled, Florida Education Association/United and Florida Teaching Profession/National Education Association v. Department of Education, DOAH Case No. 88-0847R.
Findings Of Fact Petitioner Lewis Rushton is a person within the meaning of Section 760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of Section 760.10(1). The Department of Education ("DOE") is a personwithin the meaning of Section 760.02(5). The School Board of Seminole County, Florida ("School Board"), which is also a person within the meaning of the same statute, was at all material times Mr. Rushton's "employer" within the meaning of Section 760.02(6). At all material times, Mr. Rushton was employed as a bus driver by the School Board, which removed him from this position on April 19, 1988. The reason for the School Board's action was that the continued service of Rushton, who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida Administrative Code, which required mandatory retirement of bus drivers at age 70 years ("Rule"). The other Petitioners were similarly situated to Mr. Rushton. The only difference is that they were employed by different district school boards. The School Board gave Rushton the option to continue in employment as a bus monitor, which was a lower-paying job than bus driver. Rushton accepted this reassignment and experienced the resulting reduction in pay beginning the 1988-89 school year. At all material times, DOE, which promulgated the Rule, maintained standards affecting the ability of Rushton to engage in his occupation or trade within the meaning of Section 760.10(5). The Rule was part of these standards. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR Case No. 88-5616, against the School Board. The Florida Commission on Human Relations dismissed this complaint on November 11, 1988. On May 3, 1988, Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No. 88-5703, against DOE. On September 7, 1988, the Florida Commission on Human Relations issued a Notice of Determination--Cause. The Notice of Determination names as the sole respondent the School Board, which had employed Mr. Rushton prior to requiring him to retire at age 70. After DOE filed a Request for Reconsideration on September 16, the Florida Commission on Human Relations issued on January 12, 1989, a Notice of Redetermination--Cause. The Notice of Redetermination names DOE as the sole respondent. The Notice of Redetermination states that DOE's "assertion that [the Rule] is an established 'bona fide occupational qualification' for employment has not been upheld." The quoted statement in the Notice of Redetermination is to a final order issued December 14, 1988. The final order found the Rule to be an invalid exercise of delegated legislative authority. The final order was the culmination of a Section 120.56 challenge to the Rule that had been prosecuted against DOE by two unions representing the Petitioners. This rule challenge was styled, Florida Education Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule Challenge"). The Florida Teaching Profession/National Education Association was an intervenor on the side of the petitioner in the Rule Challenge. Lorene C. Powell represented the petitioner in theRule Challenge, and Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan, Lev & Siwica, represented the intervenor. As the final hearing in the Rule Challenge approached, DOE requested abatements of the pending cases in which individual bus drivers had sought relief under Section 760.10. At that time, the cases of all Petitioners except Mr. Rushton were pending in the Division of Administrative Hearings. The grounds for the abatements were that the decision in the Rule Challenge "would substantially affect the outcome" of the pending individual cases. Each case was abated. The parties in the Rule Challenge stipulated that various counties, due to the Rule, had not rehired bus drivers who would have been rehired but for the fact that they had attained the age of 70 years. The parties also agreed that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do not permit an age limitation on employment with the exception of where such an age limitation is based on Bona Fide Occupational Qualification." The stipulated issues for determination in the Rule Challenge included "whether the 70-year old age barrier . . . is a [bona fide occupational qualification] and thus a valid exception to the state and federal ban on age discrimination based solely on chronological age." By memorandum dated January 11, 1989, DOE informed school board superintendents of the final order invalidating the Rule. By letter dated February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer requiring enforcement of the mandatory retirement rule and he could return to work as a bus driver if he could meet certain lawful requirements. Each Petitioner was so notified by his respective school board. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief against the School Board and DOE, including a finding that mandating his retirement due to age was an unlawful employment practice, an award of back pay and associated benefits, and an award of attorneys' fees in the prosecution of the subject proceeding and such other proceedings as were necessary or appropriate to obtain the relief and apportioning the fees between the School Board and DOE. With the filing of the Petition for Relief on March 21, 1989, John Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union, the Florida Teaching Profession/National Education Association. On or shortly after May 1, 1989, the School Board settled with Mr. Rushton by agreeing to compensate him for back pay, interest, and other benefits constituting relief otherwise available under Section 760.10. Similar settlements between the other Petitioners and their respective school boards resulted in the dismissal of all claims against the various school boards.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitions for Relief in the above-styled cases. ENTERED this 2nd day of May, 1990, in Tallahassee, Florida. COPIES FURNISHED: John J. Chamblee, Jr. Chamblee, Miles and Grizzard 202 Cardy Street Tampa, FL 33606 Vernon T. Grizzard Chamblee, Miles & Grizzard 116 South Monroe Street Tallahassee, FL 32301 Sydney H. McKenzie III General Counsel Carl J. Zahner Assistant General Counsel Department of Education Knott Building Tallahassee, FL 32399 Lorene C. Powell, Assistant General Counsel FEA/United 208 W. Pensacola Street Tallahassee, FL 32301 Ned N. Julian, Jr. Sun Bank Building, Suite 22 Post Office Box 1330 Sanford, FL 32772 Tobe Lev Egan, Lev & Siwica P.O. Box 2231 Orlando, FL 32802 Norman Smith Brinson, Smith & Smith 1201 W. Emmett St. Kissimmee, FL 32741 ROBERT E. MEALE 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 2nd day of May, 1990. William H. Vogel, Assistant Superintendent Personnel and Administrative Services P.O. Box 1948 Kissimmee, FL 32742-1948 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue Whether the Respondent discriminated against the Petitioner on the basis of disability, in violation of the Florida Civil Rights Act of 1992, Section 760.10 et seq., Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rivero was first employed by Miami-Dade County in November 1984, apparently as a security guard with the Metropolitan Dade County Park and Recreation Department. He took a physical examination and informed the doctor conducting the examination that he suffered from cluster migraine headaches and that they occurred about six to eight times each month. Mr. Rivero subsequently left his employment with Miami-Dade County, but was re-hired in September 1986. At the time he was re-hired, he advised the recruiting officer that he suffered from migraine headaches. Mr. Rivero was employed by the Metropolitan Dade County Park and Recreation Department from September 1986 until August 10, 1999. From January 1996 through May 1999, Mr. Rivero was employed as a park ranger by the Metropolitan Dade County Park and Recreation Department, and he worked at the Metrozoo. His job responsibilities included patrolling areas of the zoo, assisting in emergencies, providing information to patrons, and providing for the safety of patrons and security for Miami-Dade County property. Because of his migraine headaches, Mr. Rivero often was absent from work, and he was advised several times by his supervisors, in documents entitled Record of Counseling, that the frequency of his absences was unacceptable. The most recent Record of Counseling submitted at the hearing by Mr. Rivero was dated November 24, 1997. On January 10, 1995, Mr. Rivero consulted with Ray Lopez, M.D., a neurologist, about his recurring migraine headaches, which had become more intense and frequent after Mr. Rivero was involved in an automobile accident in November 1994. Dr. Lopez diagnosed Mr. Rivero with migraine headaches, with post-traumatic, likely cervicogenic, intensification. Dr. Lopez treated Mr. Rivero for his headaches from January 1995 until at least December 1999. During this time, Mr. Rivero was seen by Dr. Lopez approximately twice a month. Between 1995 and 1999, Mr. Rivero's migraine headaches continued to intensify in severity and frequency. By January 1999, Mr. Rivero found it increasingly more difficult to carry out his duties as a park ranger at Miami-Dade County's Metrozoo when he had a headache, and his headaches were occurring almost daily. Between January 1999 and March 1, 1999, Dr. Lopez wrote several notes documenting Mr. Rivero's inability to work on specified days because of the headaches. Effective March 29, 1999, Mr. Rivero's work schedule was cut from 39 hours per week to 16 hours per week. Mr. Rivero had previously worked Saturdays through Wednesdays, with Thursdays and Fridays off. As a result of the change, Mr. Rivero was assigned to work on Saturdays and Sundays from 10:00 a.m. to 6:30 p.m. Mr. Rivero last reported for work at the Metrozoo on or about May 22, 1999. Mr. Rivero was unable to continue working because of the frequency and severity of his headaches. Nonetheless, Mr. Rivero called the Metrozoo office regularly between May 22, 1999, and July 18, 1999, to report that he was absent because of illness. He did not, however, have any intention of returning to work after May 1999 because he believed he could no longer perform the duties required of a park ranger.3 In July 1999, Diane Condon, the personnel manager for Metropolitan Dade County Park and Recreation Department, was told by Mr. Rivero's supervisor at the Metrozoo that Mr. Rivero had been absent for quite some time, that he had exhausted his paid leave time, and that the reason for his absences was medical. It was suggested to Ms. Congdon that Mr. Rivero be offered leave under the Family Medical Leave Act of 1993. In a letter dated July 12, 1999, from John Aligood, Chief of the Human Resources Division of the Metropolitan Dade County Park and Recreation Department, Mr. Rivero was notified that he had been preliminarily granted family/medical leave but that he would have to present a certification from his doctor within 15 days of the date he received the letter in order for his eligibility for such leave to be finally determined. Mr. Rivero was advised in the July 12, 1999, letter that continuation of the leave was contingent on receipt of medical certification from his doctor; that he must furnish the certification within 15 days after he received the letter; and that "[f]ailure to do so will result in relinquishing FMLA leave; you will then be required to return to the full duties of your job or resign, or you will be terminated for abandonment of position." The July 12, 1999, letter was sent to Mr. Rivero via certified mail, and he picked it up on July 22, 1999. Mr. Rivero contacted Ms. Congdon on July 22, 1999, and told her that Dr. Lopez was unavailable at that time to complete the medical certification. Ms. Congdon advised him that the medical certification was required for the family/medical leave to continue.4 In a letter dated August 10, 1999, which was prepared by Ms. Congdon, Mr. Rivero was advised that his employment had been terminated for abandonment of position because he had failed to provide the medical certification required for continuation of family/medical leave by July 26, 1999, which was 15 days after July 12, 1999.5 Summary The evidence presented by Mr. Rivero is insufficient to establish with the requisite degree of certainty that his employment as a park ranger with the Metropolitan Dade County Park and Recreation Department was terminated because of his medical condition. Mr. Rivero himself testified that he believed he was unable to perform the duties required by his job as of May 1999 because of his migraine headaches and that he had no intention of returning to work subsequent to May 1999. The evidence presented by Mr. Rivero is sufficient to support the inference that, prior to July 12, 1999, Mr. Rivero did not advise his supervisor at the Metrozoo or anyone else in the Metropolitan Dade County Park and Recreation Department that he did not intend to return to work after the end of May 1999. His being placed preliminarily on family/medical leave as of July 12, 1999, did not harm Mr. Rivero but, rather, resulted in his health benefits being continued until his termination on August 10, 1999.
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 of Ruben Rivero. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 12th day of November, 2002.
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
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 by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
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 The issue is whether Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Mike Ostrom, was employed by Respondent, Beachers Lodge Condo Association, Inc., as a maintenance man for approximately seven years until his termination on March 23, 2012. Respondent is a Florida condominium association, located at 6970 A1A South, St. Augustine, Florida 32080. James W. Gilliam is the licensed community association manager for Respondent, is 78 years old, and has many years of property management experience. Petitioner filed a Complaint of Discrimination on the grounds of his age (55) and disability (eye surgery) with the Florida Commission on Human Relations (Commission) on March 23, 2012. Following an investigation, the Commission issued a Notice of Determination: No Cause on September 27, 2012. Petitioner filed a timely appeal of the Commission's determination on October 19, 2012. The petition was referred to the Division of Administrative Hearings, and a final hearing was conducted on December 11, 2012, in St. Augustine, Florida. Petitioner's work as a maintenance man involved numerous duties, including general maintenance to the grounds and buildings, painting, repairing balconies and other structures not requiring a general contractor, electrical work, and maintaining the pool. Petitioner worked alone much of the time. Prior to the arrival of Mr. Gilliam as the association manager, Petitioner had a good working relationship with the former manager, Steve Burdick. Under Mr. Burdick's supervision, Petitioner had more freedom to perform his maintenance work without what he calls "interference." Mr. Gilliam is more of a "hands on" supervisor than the previous manager had been. Petitioner was resistant to the constant checking on his work by Mr. Gilliam. He believed Mr. Burdick recognized his experience and left him alone to perform his daily tasks with passive supervision. Mr. Gilliam, as a new manager with Respondent, was given instruction by the association president, Joanne Dice, on behalf of the board of directors, to more closely supervise the maintenance staff. In Petitioner, Mr. Gilliam saw a good employee who "liked to do things his way." Mr. Gilliam estimates that Petitioner would do about 90 percent of the assigned tasks differently from how he would prefer them done. Mr. Gilliam tried to get Petitioner to come around to his way of doing things because he was responsible to the board of directors for properly maintaining the property. Mr. Gilliam believes he did not harass Petitioner, but does remember upsetting him on one occasion when he called him "Michael" rather than his given name of "Mike." After Petitioner made clear the fact that he preferred to be called "Mike," Mr. Gilliam never called him "Michael" again. Mr. Gilliam gave clear instructions as to how he expected the tasks assigned to Petitioner be performed, yet Petitioner continued to do things his way. Mr. Gilliam often had a certain order or priority for performing required maintenance tasks which Petitioner regularly failed to follow. After Petitioner had eye surgery and was placed on limited duty by his physician, Dr. Oktavec, Mr. Gilliam confirmed the light detail in a letter dated March 19, 2013, so that Petitioner would not suffer further injury to his eye through over exertion. Ms. Dice was elected president of the board of the condo association in 2010. She lives in Gainesville, Florida. On three separate occasions (July 26, October 27, and November 3, 2011), she drove from Gainesville to St. Augustine to discuss Petitioner's complaints of alleged harassment by Mr. Gilliam. She believed that Mr. Gilliam's job was to establish priorities and assign tasks to be completed. Sometimes, due to inclement weather and other factors, priorities would have to shift. Ms. Dice observed that Petitioner complained that he did not need anyone to tell him how to perform his job. She noted that Beachers Lodge Condominiums is a large property that requires the cooperation of all employees along with the board of directors to maintain it to the standards expected by the owners and their guests. For a year, Ms. Dice and Mr. Gilliam tried to help Petitioner improve his performance, eliminate any deficiencies, and brighten his attitude, all to no avail. A few months after the final meeting Ms. Dice held with Petitioner, she agreed with Mr. Gilliam that Petitioner's behavior could no longer be tolerated and that he should be terminated for cause. The March 23, 2012, letter from Mr. Gilliam terminating Petitioner's employment was explicit in its reasons for termination. The letter offered 13 reasons for the termination and addressed all charges made by Petitioner against Mr. Gilliam. The reasons may be summarized as follows: On October 11, 2011, Mr. Gilliam gave Petitioner a list of daily and weekly duties which he acknowledged having received. Petitioner complained about receiving such a list. On October 25, 2011, Mr. Gilliam gave Petitioner a disciplinary letter for having falsified his timecard on October 19, when Mr. Gilliam observed Petitioner driving down A1A at a time he said he was still at work. Petitioner requested owners send letters to Mr. Gilliam that he was giving Petitioner too much direction and that Petitioner was doing a good job, another indicator of not taking direction. On October 14, 2011, Petitioner did not complete a washing task he was assigned, but went on to perform another task he deemed more important. Again, on March 13, 2012, Mr. Gilliam issued Petitioner a letter addressing corrective action for not following instructions. Petitioner accused Mr. Gilliam of jerking him by the coat in front of witnesses. No witnesses came forward to support this claim. Mr. Gilliam listed issues with Petitioner's work ethic in the March 13, 2012 letter. Petitioner had broken a floor during cleaning which was cited in the March 13 letter. Another refusal to take guidance was listed in the March 13 letter. Mr. Gilliam advised Petitioner that that the failure to correct his behavior concerning following direction would lead to "additional correction." Petitioner refused to sign this letter. Petitioner had been previously advised that he was to engage in light activity based upon his physician's prescription, and as set forth in a March 19 letter from Mr. Gilliam. On March 23, 2012, a St. Johns County deputy came to the office of the association and advised Mr. Gilliam that Petitioner had filed a complaint for assault against him, which the deputy determined not to be a criminal matter. Petitioner applied for unemployment compensation after receiving the March 23 letter terminating his employment. His claim was denied by the Department of Economic Opportunity, since he had been terminated for misconduct. He is currently in the process of losing his home and has only found work with his church for 7-8 hours a week. Petitioner admits that he stood up for himself when he disagreed with Mr. Gilliam by cursing him, calling him names, and writing complaint letters to condo owners and board members. Petitioner claims he was discriminated against by his 78-year-old boss, Mr. Gilliam, who allegedly said, "if you were 30 and not 50, you could do this job better." This alleged statement was not corroborated by any witnesses and was denied by Mr. Gilliam. Petitioner alleges that Mr. Gilliam discriminated against him by making fun of him after he had eye surgery. The letter dated March 19 shows that Respondent recognized the eye injury and surgery and warned Petitioner to engage in only light duty as ordered by his doctor. No witnesses testified to the alleged derogatory comments concerning Petitioner's vision. Respondent was never made aware of any claim of discrimination against Petitioner based upon his alleged disability. Their understanding was that Petitioner needed surgery on his eyes which was performed successfully by his physician and corrected the problem. Petitioner was not replaced by a younger employee when he was terminated. Respondent continued with just one full-time maintenance man and two part-timers. The roster of employees for Respondent shows that the remaining maintenance men are ages 56, 45, and 23. Petitioner is seeking $800,000 in lost wages, yet provided no evidence to support an award of that magnitude should he be successful in his discrimination claim.
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 finding Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 9th day of January, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James W. Gilliam Beachers Lodge Condo Association, Inc. 6970 A1A South St. Augustine, Florida 32080 Mike Ostrom 900 South Rodriguez Street St. Augustine, Florida 32095 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent has been a permanent full-time employee of petitioner's for over 22 years and at the time of the alleged abandonment was employed as a Engineer Technician III in petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphreys' jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and respondent, the position of survey crew chief. Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work before the end of this 6 months leave of absence without pay. The record does not reflect when respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3). Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 25, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 petitioner placed respondent on unauthorized leave of absence without pay. On September 27, 1984 petitioner was advised by Roger Tanner, respondent's probation officer, that respondent had bean incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify respondent that he had been placed on unauthorized leave without pay on September 27, 1984 until October 4, 1984 when petitioner delivered to respondent a letter from Skinner advising him that he had abandoned his position with the petitioner. Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983; (3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984. The evidence reflects that respondent had a "drinking problem" of which petitioner was aware but did very little "counseling" with respondent in this regard. On October 1, 1984 Mr. Markham, Humphreys Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that respondent's "problem would be resolved in a few days" or at least "by the weekend." Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because respondent did not have a valid driver's license. Walter H. Skinner had been delegated authority to take this type action against respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that it be found that respondent did not abandon his position and resign from the Career Service as contemplated under Rules 22A-7.1O(2)(a) and 22A-8.O2, Florida Administrative Code and that respondent be reinstated to his position of Engineer Technician III as of September 27, 1984. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Donald K. Hudson, Esquire Post Office Box 948 Jasper, Florida 32052 Daniel C. Brown Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paul A. Pappas Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel 562 Hayden Burns Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue Whether Petitioner, Cassondra Davis, suffered an adverse employment action as a result of unlawful discrimination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made. Petitioner, Cassondra Davis, is a female African- American. At all times material, Petitioner was employed by Respondent, Department of Corrections, at Brevard Correctional Institution (Department). Petitioner's last day of actual work at the Department was April 10, 1996. Susan Blais, Personnel Manager at Brevard Correction Institution during the relevant time frame, testified that because of medical problems, Petitioner was unable to return to work after April 10, 1996, until her physician released her to return to work. Petitioner never presented a medical return-to-work release. Instead, she utilized her entitlement to Family Medical Leave Act leave. Once this leave was exhausted, rather than terminate Petitioner, the Department wrote to her physician, Dr. F. F. Matuk, on September 16, 1996, requesting a diagnosis of Davis' condition, as well as an opinion as to whether she could perform the duties of a correctional officer as outlined in a job description enclosed with the request for opinion. (Respondent's Exhibit 1) Dr. Matuk responded to the Department by letter dated September 20, 1996, stating that Petitioner had several work restrictions, including no weight manipulation over 20 to 30 pounds, avoidance of driving over 30 to 40 minutes, avoidance of neck extension, and allowances for extended periods of rest. He did not believe that Petitioner was able to perform the duties of a correctional officer but stated that she would most likely be able to perform a sedentary desk job. (Respondent's Exhibit 2) Susan Blais testified that no such desk jobs were available at that time. Petitioner submitted a letter of resignation to the Department in July 1997, wherein she attributed the resignation to medical reasons. (Respondent's Exhibit 3)
Recommendation Based upon 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. DONE AND ENTERED this 26th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 26th day of March, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cassondra A. Davis 1009 Cannes Drive Poinciana, Florida 34759-3918 Cassondra A. Davis 1216 Pua Lane, No. 107 Honolulu, Hawaii 96817-3821 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
