Findings Of Fact Petitioner, Basil Glinton (Glinton), was employed full time by the Respondent, Department of Health and Rehabilitative Services (Department) as a Public Assistance Specialist II. On September 14, 1984, as a result of a transfer, Glinton was scheduled to start work at the Department's Food Stamp Office, Unit 61, in Miami, Florida. At 9:15 a.m., September 14, 1984, a Friday, Glinton reported to Unit He requested and received his paycheck, and advised the acting supervisor that he had a doctor's appointment which would require his absence from the office for about one hour. Glinton did not return to the office that day. On Monday, September 17, 1984, Glinton reported to Unit 61 and worked from 8:12 a.m. to 5:00 p.m. On that date, the office supervisor, Raquel Tima, met with Glinton and spoke with him about his absence of September 14, 1984. Ms. Lima advised Glinton that she needed a doctor's statement to authorize that absence. No doctor's statement has been produced. Glinton failed to report for work the remainder of that workweek-- September 18-21, 1984. On September 21, 1984, Ms. Lima sent a warning letter, certified mail, to Glinton. The postal claim check reflects that Glinton was notified of the letter on September 24, 1984, September 29, 1984, and October 9, 1984, but failed to claim it. Glinton likewise failed to report for work the following week-- September 24-28, 1984. He did, however, appear at the office on Friday, September 28, 1984, to request his paycheck. On October 1, 1984, Glinton was personally delivered a letter dated September 28, 1984, which advised him that his absence from work since September 18, 1984 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Glinton of his right to petition the Department of administration for a review of the facts and whether they constitute abandonment. By letter dated October 4, 1984, Glinton timely petitioned the Department of Administration for review. In his letter, and at final hearing, Glinton claimed he was ill and under a doctor's care for the period of September 18-28, 1984, and that he had routinely called, or had someone else call, the office to advise them of his illness. While professing "illness" for a two-week period, Glinton failed to offer any evidence of the nature of his illness. He further failed to offer the testimony of his physician, or any other evidence supportive of his claim. While Glinton acknowledges familiarity with the Department's rule which requires that the supervisor be notified of absence due to illness, he made no attempt to contact his supervisor. The only time the office was notified of his absence was on September 19, 1984 when an unknown female telephoned and advised the switchboard operator, without explanation, that Glinton would not be coming to work on that date. Glinton's testimony that his absence from work during the period of September 18-28, 1984 was due to illness, and that he telephoned the office every day during his absence, is inherently improbable and unworthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order that: Petitioner, Basil Glinton, abandoned his position and resigned from the Career Service effective October 1, 1984. Dismisses the petition of Basil Glinton with prejudice. DONE AND ENTERED this 8th day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1985. COPIES FURNISHED: Dniel C. Brown, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Leonard Helfand, Esquire Department of Health and Rehabilitative Services Suite 1070, 410 N.W. 2nd Avenue Miami, Florida 33128 Robert L. McKinney, Esquire Suite 1107 Jackson Medical Tower 1500 N.W. 12th Avenue Miami, Florida 33125 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Petitioner abandoned her position of employment and resigned from the career service.
Findings Of Fact Petitioner, Hermia Reid, began her employment with Respondent, Department of Health and Rehabilitative Services (DHRS) on April 29, 1985. At the times pertinent to this proceeding, she was a registered nurse and held the career service position of Senior Registered Nurse Supervisor at the Landmark Learning Center, a DHRS facility. Petitioner had been given a copy of the DHRS Employee Handbook which contained the pertinent attendance and leave policies. Petitioner was on authorized annual leave for a vacation from June 25, 1990 through July 10, 1990. She was scheduled to return to work on July 11, 1990. For her vacation, Petitioner traveled to the State of New York to visit relatives. On July 1, 1990, Petitioner received injuries to her neck and back from an automobile accident. On July 2, 1990, Petitioner was examined by Dr. Victor Brooks, a physician whose office is in Yonkers, New York. Dr. Brooks determined that Petitioner required therapy and bed rest for three to four weeks. On Friday, July 6, 1990, Petitioner telephoned Claude Sherman, her supervisor, and told him of her injuries and of her inability to return to work as scheduled. Petitioner requested an extension of her leave. Mr. Sherman verbally granted a one-week extension of her authorized leave on the condition that Petitioner send him a letter from her doctor. On July 9, 1990, Petitioner returned to Dr. Brooks and received a note from him which he dated July 2, 1990, the date of the initial visit. This note provided in pertinent part as follows: The above named individual was in a motor vehicle accident and suffered neck and back injuries. Due to her present condition, it was decided that she should receive therapy and bed rest over a period of 3-4 weeks. On July 10, 1990, Petitioner gave the note from Dr. Brooks dated July 2, 1990, to her brother and asked him to mail it to Mr. Sherman by certified mail, return receipt requested. On July 20, 1990, Petitioner became concerned that the receipt for the certified mailing had not been returned and asked her brother about the mailing. Petitioner learned that her brother had forgotten to mail the note. Petitioner's brother mailed the note dated July 2, 1990, to Mr. Sherman on July 21, 1991. On July 30, 1990, Ulysses Davis and Mr. Sherman, as Superintendent and as Executive Nursing Director of Landmark, respectively, mailed to Petitioner at her home address in Miramar, Florida, a letter which had been dated July 23, 1990. This letter provided, in pertinent part, as follows: You have not called in or reported to work since July 10, 1990, and therefore you have abandoned your position as a Senior Registered Nurse Supervisor and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System. Your resignation will be effective on the date you receive this letter or on the date we receive the undelivered letter advising you of your abandonment. At the time the letter of July 23, 1990, was mailed to Petitioner, the note from Dr. Brooks dated July 2, 1990, had not been received by Mr. Sherman. Because Mr. Sherman did not receive a doctor's note from Petitioner prior to July 23, 1990, he did not authorize her leave after her authorized annual leave expired on July 11, 1990. Dr. Brook's note dated July 2, 1990, was received by Landmark on or about August 2, 1990. 1/ The letter from Mr. Sherman and Mr. Davis was mailed to Petitioner by certified mail, return receipt requested. Daphney Gaylord, Petitioner's neighbor, received this mailing on Petitioner's behalf and signed the return receipt. Petitioner did not receive the letter, nor was she made aware of its contents, until August 15, 1990. On July 27, 1990, Petitioner returned to Dr. Brooks and received another note which provided, in pertinent part, as follows: The above named was examined by me today and as a result, I am requesting a follow up visit in two weeks as she is not ready to return to work. Dr. Brook's note of July 27, 1990, was mailed by certified mail to Mr. Sherman by Petitioner's brother on August 2, 1990, and was received by Mr. Sherman on August 6, 1990. After visiting Dr. Brooks on July 27, 1990, Petitioner attempted to reach Mr. Sherman by telephone to advise him of her status. Mr. Sherman was not available so Petitioner talked with Mr. Sherman's wife. Mrs. Sherman also worked at Landmark, but she was not Petitioner's supervisor. Mr. Sherman was unaware that Petitioner had spoken with his wife. On August 13, 1990, Dr. Brooks discharged Petitioner from his care and authorized her to return to work after she had visited her physician in Florida. Dr. Brook's note of August 13, 1990, provided, in pertinent part: As per previous notes and as per complete physical examination today it is my feeling that the above named can return to work after seeing her regular M.D. On August 14, 1990, Petitioner returned to Florida. On August 15, 1990, Petitioner was examined by Dr. Sylvia Cohn, a physician practicing in Pembroke Pines, Florida, who advised that Petitioner would be able to return to work on August 20, 1990. Also on August 15, 1990, Petitioner met with Mr. Sherman at Landmark. Mr. Sherman advised Petitioner that her employment had been terminated, asked whether she had received his letter dated July 23, 1990, and advised her to talk with Thelma Olifant, Landmark's personnel director. Petitioner went home after unsuccessfully attempting to locate Ms. Olifant. After she returned home on August 15, 1990, Petitioner contacted her neighbor, Ms. Gaylord, and received from her the certified letter from Mr. Sherman and Mr. Davis dated July 23, 1990. Petitioner had no history of discipline concerning abuse of leave policies. Petitioner did not intend to resign her position with the career service.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner did not abandon her career service position and which orders that Petitioner be reinstated with back-pay to her career service position with the Department of Health and Rehabilitative Services. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. CLAUDE B. ARRINGTON 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 May, 1991.
Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
Findings Of Fact There are no disputed issues of material fact which would preclude entry of this summary recommended order of dismissal based on the undisputed facts and law involved. Petitioner was dismissed from his career service position with Respondent state agency. On appeal, the dismissal was reversed. Petitioner was off the state agency payroll and did not work for seven months. In backpay proceedings before the Public Employees Relations Commission (PERC), Petitioner was awarded backpay for only one month. Petitioner was paid for the one month that pay was awarded, but not for the other six months. Petitioner received retirement credit, annual leave credit, and sick leave credit for that one month awarded and paid, but not for the other six months.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Management Services enter a final order denying all claims of Petitioner and dismissing the Petition. RECOMMENDED this 12th day of April, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1993.
Findings Of Fact The Petitioner, James D. Reeves (Reeves), was employed full time by Respondent, Department of Agriculture and Consumer Services (Department), as an Inspector I in Vero Beach, Florida. On February 3, 1986, Reeves met with Mr. Charles E. Knight, Director of the Department's Division of Fruit and Vegetable Inspection. Recognizing that Reeves was suffering severe emotional problems, Mr. Knight authorized him to take sick leave to visit his family physician in Wrens, Georgia. Regarding the duration of that leave, Mr. Knight testified: I told Mr. Reeves as soon as he got into Georgia, he needed to see his doctor, if he had to go there and sit and wait all day and be the last person to see him, because he needed to follow the personnel rules and regulations, and he needed to get a doctor's excuse signed, if he was going to be off for any extended period of time. I told him I'd like to see him back at work within ten days, if he could get back to work by then. But I told him we would abide by whatever the doctor said, if he signed a written excuse, and he got his papers in. I also told him that he needed to stay in contact with me or the personnel office.... Reeves executed an application for sick leave effective February 4, 1986, with an open return date. On February 4, 1986, while enroute to Wrens, Georgia, his automobile broke down on I-95 near Savannah, Georgia. By February 10, 1986 the necessary repairs, including a rebuilt engine, had been competed on his automobile, and Reeves was able to resume his journey. On February 12, 1986, Reeves was finally able to see his physician, who prepared a "written excuse" that provided: Mr. Dixon Reeves was seen by me today in the office. He related his work history and present employment situation to me. Mr. Reeves admits to and is obviously under a great deal of stress concerning this issue. From the standpoint of mental well being, it is inadvisable for him to return to the cannery. I also understand that from the physical standpoint, he had to consult a podiatrist after working in the cannery for a number of years. Mr. Reeves is currently under my care for treatment of anxiety that the present circumstances have created. It is my opinion that a return to his former position in the cannery would worsen his condition and is therefore medically contraindicated. Please feel free t contact me if you need any further information. On February 13, or 14, 1986, Reeves forwarded a copy of his doctor's excuse, as well as a copy of the towing bill and repair bill for his car, to the Department's personnel office. These documents were sent to the Department without benefit of a cover letter and were the first contact the Department received from Reeves after his departure. By certified letter of February 19, 1986, the Department advised Reeves that his absence from work on February 10-12, 1986, was unauthorized and that, pursuant to Rule 22A-7.010(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Reeves of his right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. Reeves timely petitioned the Department of Administration for review. On May 15, 1986, the Department accepted Reeves petition and on July 18, 1986 requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing. While it certainly would have been better practice for Reeve's to have kept his employer informed of the problems he encountered on his journey and the delays occasioned to his return, it cannot be concluded from this record that Reeve's absences of February 10-12, 1986 were unauthorized or that he abandoned his position. While somewhat open ended, Reeves' leave was at least authorized through February 13, 1986.
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 November, 2008.
The Issue The issue is whether the Petitioner, a former employee of the Respondent, was overpaid in the amount of $1,165.76, and should be required to repay that amount to the Respondent.
Findings Of Fact The Petitioner was a career service employee of the Respondent and was initially employed on November 17, 1997. The Petitioner’s employment with the Respondent was terminated on June 30, 2003, due to layoffs created by the outsourcing of the Family Services Unit of the Respondent. The Petitioner’s annual rate of pay at the time of her termination was $19,797.44, paid bi-weekly. By letters dated August 26, 2003, October 14, 2003, and February 16, 2004, the Petitioner was informed that six separate salary overpayments had occurred. The Petitioner actually worked 56 hours during the pay period of June 20, 2003 through July 3, 2003, but was inadvertently paid for 80 hours of work. The Petitioner was inadvertently paid for working the days of July 1, 2, and 3, 2003, although her employment had been terminated effective June 30, 2003. The overpayment was for 24 hours, amounting to $183.79, based upon the Petitioner’s annual rate of pay. The Petitioner was no longer employed by the Respondent during the pay period of July 4, 2003 through July 17, 2003, but was inadvertently paid for 80 hours of work. The overpayment amounted to $601.70, based upon the Petitioner’s annual rate of pay. Following termination of employment, the Respondent’s Human Resources Department conducted an audit of the terminated employee’s leave. An audit was performed by the Respondent concerning the Petitioner’s leave. In the course and scope of the Respondent performing the audit of the Petitioner’s leave, the Respondent discovered that the Petitioner had been overpaid for four pay periods in 2003. Once an employee of the Respondent no longer has sick leave remaining, annual leave is used to cover any shortages in sick leave. Once an employee of the Respondent no longer has either sick leave or annual leave remaining, the employee cannot be paid for additional time taken as leave. The additional time becomes “leave without pay.” The Petitioner was overpaid in four separate pay periods when she had insufficient sick or annual leave as follows: 1/31/03-2/13/03: 16.50 hours 4/11/03-4/24/03: 22.75 hours 4/25/03-5/08/03: 4.25 hours 5/23/03-6/05/03: 4.75 hours The sum of the hours of overpayment is 48.25, which translates to the amount of $380.27 in overpayment to the Petitioner for the referenced pay periods. The total amount of the Respondent’s overpayment to the Petitioner, based upon the salary payments for July 1, 2, and 3, 2003, July 4 through 17, 2003, and the four pay periods in which the Petitioner was overpaid when her sick and annual leave had run out is $183.79 plus $601.70 plus $380.27, which totals $1,165.76. The Petitioner was not at fault for the overpayment. She did not falsify her leave reports or timesheets, nor was she accused by the Respondent of having done so. The Petitioner believed that the pay she received for July 4, 2003 through July 17, 2003, was severance pay since she had been terminated when her position had been eliminated. The Respondent does not issue severance pay to terminated employees. The Petitioner believes that some of the leave she had taken during the four pay periods when her sick and annual leave had run out should have been considered administrative leave which, according to the Respondent, was offered to employees in the Family Services Unit who were facing termination as an aid to finding new jobs. Administrative leave was available to employees whose positions were being eliminated to allow them to use the Internet while at the office to search for jobs, and to leave the office for interviews or any testing required for re- employment. The Petitioner failed to document leave time, if any, during the pay periods at issue in this proceeding, that she took for purposes of job testing or interviews. The Petitioner failed to properly designate administrative leave on the automated leave system, Time Direct, for the pay periods at issue in this proceeding, even though, as a secretary specialist for the Respondent for seven years, her duties included keeping track of leave for the people in her work unit. The Respondent offered several of the Petitioner’s timesheets that reflect the Petitioner’s having taken administrative leave on more than 30 occasions from October 2002 through May 2003. These time entries for administrative leave include time during each of the four pay periods at issue in this proceeding, January 31, 2003 through February 13, 2003, April 11, 2003 through April 24, 2003, April 25, 2003 through May 8, 2003, and May 23, 2003 through June 5, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order requiring the Petitioner to repay the Respondent $1,165.76. DONE AND ENTERED this 5th day of March, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2004. COPIES FURNISHED: Rosanna Boyd Apartment 162 3400 Townsend Boulevard Jacksonville, Florida 32277 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 9, 2011.
Findings Of Fact Petitioner commenced her employment with Respondent in November 1997. On December 9, 2010, Petitioner ceased being employed by Respondent. In her Charge of Discrimination, Petitioner alleges that Respondent discriminated against her on the basis of "disability" and "retaliation." Exhibit A to the Charge of Discrimination provides as follows: I was employed with Orange County Clerk of Courts since November 1997. During my tenure with Orange County Clerk of Courts, I served as a Supervisor and satisfactorily and/or above satisfactorily performed the essential job duties of my position. Notwithstanding my performance, I was subjected to discrimination based on my handicap and/or disability, as further described below. In 1999 I injured my back while on the job and in 2003 I had surgery for same. I had 2 rods and 4 screws placed in my back. On September 27, 2010, I was on FMLA leave until December 8, 2010, and I requested an extension until December 27, 2010, but it was denied. While out on FMLA leave I had the rods removed from my back, which is why I was not able to return to work on December 9, 2010. The reason I was out of work all this time was a direct result from the workers compensation injury I sustained in 1999. Many of my colleagues that were unable to report to work were provided the opportunity to work from home, however I was not. I feel that I was targeted for termination even though such non-handicapped and/or disabled employee was not subject to any adverse employment action. Based on the foregoing actions of Orange County Clerk of Courts described herein, I believe that I have been discriminated and retaliated against, including my unlawful termination, based on my handicap and/or disability in violation of the Florida Civil Rights Act of 1992 and Title VII of the Civil Rights Act. Due to my unlawful termination, I have suffered and continue to suffer severe financial and emotional damages. I am seeking compensation for my lost earnings, my lost earnings capacity, my emotional distress, and for punitive damages because Orange County Clerk of Courts acted with malice and/or reckless disregard for my protected rights. Following the "no cause" determination by FCHR, Petitioner requested an administrative hearing by filing a Petition for Relief. In her Petition for Relief, Petitioner, when directed to describe the "disputed issues of material fact," noted the following: "Respondent states Complainant abandoned her position. Complainant had vacation time not used on company's books – other employees have/were granted extension of time off – they had no time accrued on books." Petitioner was employed by Respondent as a supervisor in the Division of Records Management. In her role as supervisor, Petitioner, among other duties, was responsible for supervising "a records tech one, two, and three" as well as the person that occupied the position designated as the team "lead." Petitioner's job description lists the following as essential duties and responsibilities of her position: Perform any or all of the duties described below depending upon the Division to which assigned. The omission of specific statements of duties does not exclude them from the position if the work is similar, related, or a logical assignment to the position. Assign, schedule, review and evaluate the work of subordinates. Assist in various areas of personnel administration to include preparation of employee performance evaluation, conduct of employee action plans, and employee counseling/discipline. Monitor customer assistance to include service counter/courtroom coverage, and provide assistance when appropriate. Coordinate divisional orientation and oversee the training of new employees. Provide ongoing divisional training program to include efficient use of a variety of court software, case tracking, and other computer systems. Maintain time and attendance records and related reports for divisional personnel. Review/approve employee leave requests. Respond to complaints, difficult situations and non-routine inquiries from the public in a professional and timely manner. Resolve problems and answers questions that subordinates are unable to solve. Provide assistance to judicial assistants, judges, and other court personnel. Verify that documents processed through the front counter are distributed properly and in a timely manner. Assist in collecting/analyzing data and prepare associated reports. Inform management of any problems or issues. Establish/maintain effective intra-divisional working relationships where areas of responsibility are shared among divisions. Close out and balance the register when required. Complete end of day audit per Clerk's Cash Control Policy as necessary. Communicate with coworkers, management, staff, the general public, and others in a timely, courteous and professional manner. Conform with and abide by all regulations, policies, work procedures and instructions. Respond promptly when returning telephone calls and replying to correspondence including email and faxes/emails. Act, dress, and behave in a professional manner to reflect a positive image of the Clerk's Office. Fully support the Clerk's Quality Policy and standards of Performance Excellence by delivering exemplary services to both internal and external customers. Provide the utmost in customer service efficiently, effectively, and expeditiously. Develop, implement, and provide tools necessary for staff to collect accurate and useable data for the Performance/Productivity Measurement System (MOS). Utilize available tools to collect necessary information and report daily/weekly Performance/Productivity Measurement System (MOS) data to the Assistant Manager. Perform observations, calculations, and implementation of forms necessary for the Performance/Productivity Measurement System (MOS). Monitor process changes in order to evaluate Performance/Productivity Measurement System (MOS) measurements accordingly. Report these findings to the management team and Special Projects Coordinator for appropriate action. Assist in the preparation and update of the Performance/Productivity Measurement System (MOS) Area Books for the division. Continuously strive to instill Performance Excellence in all functions within the Division through teamwork, customer feedback, and process based management. Throughout her tenure as a supervisor, Petitioner generally received "acceptable" ratings (highest ratings possible) on her annual employee performance appraisals. On June 1, 2009, Petitioner's supervisor, Cindy Startz, noted that Petitioner was viewed as a "great asset" to the office of the Orange County Clerk of Courts. In 1999, Petitioner sustained a work related injury to her back. In reviewing the record, it appears as though Petitioner, sometime in 2003, had surgical rods inserted in her back in order to stabilize her spine. The rods were surgically removed from Petitioner's back on or about December 9, 2010. Prior to her December 2010 back surgery, Petitioner, from August 3, 2010, through August 17, 2010, used two weeks of Family Medical Leave Act (FMLA) leave to care for her child. Petitioner's FMLA leave year for the period in question commenced on August 3, 2010. Therefore, for the twelve month period beginning August 3, 2010, Petitioner had twelve weeks of FMLA leave or a maximum of 480 working hours available for use. On or about October 4, 2010, Petitioner submitted to Respondent another request for FMLA leave. This request from Petitioner was for the period September 27, 2010, through October 27, 2010. Petitioner's FMLA leave request for this period was approved by Respondent on November 2, 2010. Petitioner did not return to work on October 28, 2010. She sought and was granted by Respondent a continuation of her FMLA leave through and including December 8, 2010. As of December 8, 2010, Petitioner had exhausted her 12 weeks of FMLA leave for the annual leave period that commenced on August 3, 2010. Several days prior to exhausting her FMLA leave, Petitioner was informed by Respondent that her FMLA leave entitlement for the relevant period would expire on December 8, 2010. In anticipation of the expiration of her FMLA leave entitlement, Petitioner, on or about December 2, 2010, submitted to Respondent a request for leave of absence without pay for the period December 9, 2010, through December 27, 2010. In support of her request for leave of absence, Petitioner provided to Respondent a statement from her orthopedist. According to her orthopedist, Petitioner suffered from chronic low back pain and was "having surgery on 12/9/10 for hardware removal [from her back, and that] [s]he will be out of work from 12/9/10 – 12/27/10, and [these] dates may be adjusted as needed pending [patient] recovery." The orthopedist also noted that for the two to three month period following her surgery, it was anticipated that Petitioner would experience one or two "flare-ups" with her back that would require orthopedic intervention. On December 8, 2010, Petitioner's supervisor, Marlene Muscatello, sent Petitioner an email message regarding Petitioner's request for a leave of absence without pay. The email message provides as follows: Hello Sandra, I received your leave of absence request for December 9 through December 27th. Your request has been reviewed and considered. However, the Records Management division is unable to accommodate your leave of absence request due to the workload burden on the division. Thank you, Marlene On September 6, 2010, Marlene Muscatello became Petitioner's supervisor and division manager for Respondent's Records Management Division. Ms. Muscatello, when considering Petitioner's request for leave of absence, was familiar with the needs of the Records Management Division. In explaining why Petitioner's request for leave of absence was denied, Ms. Muscatello credibly testified that as a result of Petitioner's absence, it was necessary to reassign Petitioner's responsibilities to other employees in the Records Management Division. The employees that were tasked with Petitioner's work functions were required to perform Petitioner's job functions as well as their own. According to Ms. Muscatello, this working arrangement created a hardship on the employees in the Records Management Division. Petitioner disputes that her absence from the office during her FMLA leave period created a hardship on her fellow employees. According to Petitioner, her absence from the office allowed the person serving in the position of tech-three, "to jump in and learn more." Ms. Muscatello generally agrees that Petitioner's absence provided learning opportunities for other employees. However, Ms. Muscatello also notes that while the other employees in the division were taking on new responsibilities associated with Petitioner's absence, the employees were still responsible for performing their regular duties. In addition to the hardship placed on other employees resulting from Petitioner's absence, Ms. Muscatello was also concerned about the uncertainty surrounding when Petitioner would be released by her physician to return to work. Specifically, Ms. Muscatello was concerned about that portion of the physician's statement indicating that December 27, 2010, was only an anticipated release to return to work date and that Petitioner's actual return to work date "may be adjusted as needed pending [patient] recovery." Petitioner contends that because the doctor's statement is "open ended," it was possible that Petitioner could have been released to return to work prior to December 27, 2010. It is precisely the "open ended" nature of the doctor's statement that factored into Ms. Muscatello's decision to deny Petitioner's request for leave without pay. It is clear from the doctor's statement that Petitioner was unable to perform her job duties upon exhaustion of her FMLA leave. In addition to the previously referenced email, Respondent also sent on December 8, 2010, correspondence to Petitioner wherein she was advised of the following: This is to advise you that as of December 8, 2010, your 12 weeks of leave under the federal Family and Medical Leave Act is exhausted. The State of Florida does not mandate any additional leave rights beyond the federally mandated FMLA and all of your accrued sick and vacation leave has been exhausted. In accordance with our FMLA policy and as is permitted by FMLA regulations, we require all employees on leave to provide notice of their intent to return to work and if returning, a note from their medical provider returning them to their job. The documentation you provided on December 2, 2010, from your physician states that you need to be out of work from December 9th through December 27th. As outlined in the Clerk of Courts Employee Handbook, Section 408, you submitted a request to your division management for a Leave of Absence beyond your FMLA eligibility. Unfortunately your division is unable to approve your request at this time. Clerk of Courts policy states that if you do not return to work following the exhaustion of your FMLA, you will be considered to have voluntarily resigned. When you are released by your physician to return to work, you may apply for available employment opportunities with the Clerk of Courts. We appreciate your service to the Orange County Clerk of Courts and certainly wish you well in the future. If you have any questions you may reach me at 407-836-2302. Information regarding your rights to continue your employee benefits under COBRA will be sent to you separately. Please contact our office to arrange the return of any property belonging to the Clerk of Courts still in your possession (employee ID badge, parking card, keys, etc.) Sincerely, Jacquelyn Clarke, SPHR Sr. Human Resource Generalist In her Charge of Discrimination, Petitioner alleges that "[m]any of her colleagues that were unable to report to work were provided the opportunity to work from home, however I was not." The evidence is undisputed that Petitioner never requested of Respondent that she be allowed to work from home. It is illogical to suggest that Respondent discriminated against Petitioner by not allowing her to work from home when Petitioner never asked for such an accommodation. There was no evidence presented that other employees were allowed to work from home under circumstances where this option was unilaterally presented to the employees as a proposed accommodation. As previously noted, Petitioner, in her Petition for Relief, alleges that Respondent discriminated against her by not allowing her to use her accrued vacation leave upon exhaustion of her FMLA leave. In comparing the Petition for Relief with the Charge of Discrimination filed by Petitioner, it is the case that Petitioner did not make any reference, express or implied, to unused vacation time in the Charge of Discrimination that was investigated by FCHR. The undersigned has only considered those issues raised in the Charge of Discrimination. During Petitioner's employment with Respondent, the position that she occupied was covered by the Orange County Clerk of Courts Employee Handbook (Handbook). Section 409(E) of the Handbook provides, in part, that "[i]f the employee does not return to work following the conclusion of a family or medical leave, the employee will be considered to have voluntarily resigned." Petitioner signed for and received a copy of the Handbook on February 22, 2000. Section 408 of the Handbook governs requests for leave of absence without pay. This section provides in part that "[l]eave of absence without pay may be granted with manager's approval to eligible employees in instances where unusual or unavoidable circumstances require prolonged absence."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Orange County Clerk of Courts, did not commit an unlawful employment practice as alleged by Petitioner, Sandra A. Jones, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 27th day of June, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2013.
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The findings of fact in the recommended order are supported by competent, substantial evidence. They are adopted with modification together with the following supplemental findings of fact and as such both constitute the complete set of findings of fact for purposes of this final order. Albury also engages in the private practice of law as a member of a law firm. He devotes a majority of his working hours in that practice and is prohibited from representing other school boards because of his work relationship with the Monroe County School Board (the School Board). Until 1980 or 1981, Albury utilized his private law office and his private secretary to perform his duties as school board attorney. There is no evidence that this was for the convenience of the School Board, and it was a known fact that he performed his work from his private law office. The new school board office was renovated in 1980 or 1981, but no office was set up for Albury until late 1983. At that time, one room was made available to both the school board members and to Albury as school board attorney who jointly shared the one room. Prior to late 1983, that room was used by a school board employee who retired in mid-1983. Albury spends very little time in this office since a majority of his duties are performed elsewhere. Until relatively recently, Albury's private secretary did most of his secretarial work in connection with his school board representation. She was a long time employee and very familiar with his working habits, etc. When he left his employment, his new secretary who was less familiar with his habits and school board matters did less work in this area. Consequently, Albury used any one of three school board secretaries for assistance. He does not supervise any of the three secretaries and must request permission from their supervisors before having them perform work for him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Hilary U. Albury eligible for membership in the Florida Retirement System both before and after July 1, 1979. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1984.
