The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact Willie Lee Hills was first employed at Sunland Center, Orlando, Florida, in 1976 as a CETA employee. He became an employee in a regularly established position in 1977 as Groundskeeper I. Petitioner first suffered an injury to his back in 1977 in a job- related accident. In addition, he subsequently reinjured his back in 1977 and 1980, and suffered a hernia. In 1981, following another back injury, surgery was performed on Petitioner to remove a disc in his vertebrae. Following this surgery he was returned to limited/light duty on January 25, 1982, in which his lifting was limited to twenty pounds. He was unable to perform the duties assigned. By letter dated March 8, 1982 (Exhibit 4), Petitioner was directed to return to work on March 11, 1982, or provide medical certification that he was unable to work. Petitioner reported for work on March 11, as directed. He was assigned light duty in the laundry. He worked until March 17, after which he took sick leave on March 18 due to taking an awkward step and twisting his back. Petitioner did not return to work after March 18, 1982. By letter dated May 7, 1982 (Exhibit 5) , Petitioner was directed to return to work performing light duty as a Refuse Station Attendant handling bags weighing no more than nine pounds each on May 14, 1982, and if unable to work provide a medical certificate of his illness. Petitioner did not report to work or provide a medical certification of his illness. He did call the Sunland Personnel Office and was directed to return to Dr. William Cox for treatment. Dr. Cox refused to reaccept Petitioner as a patient, but Petitioner neither advised Respondent of this fact nor submitted certification of illness from another doctor. By letter dated June 2, 1982 (Exhibit 6) , Petitioner was advised that because he had failed to return to work or submit medical certification of his inability to work it was assumed he had abandoned his position and was separated from Career Service employment. This appeal followed. Petitioner was pursuing worker's compensation claims for the work- related injury during the time here relevant. At the hearing he professed an inability to bend, lift more than ten pounds, climb stairs, sit or stand for periods greater than one hour, and generally presented the appearance of one who is physically incapable of performing the duties of a Groundskeeper I. Medical evaluations dated 8-31-82 (Exhibit 4) and 10-14-82 (Exhibit 3) agree that Petitioner has a fifteen percent (15 percent) permanent impairment of his body as a whole and that he has reached a plateau of progress beyond which he is not likely to go. Neither of these evaluations found Petitioner unable to perform light duties.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of a handicap, in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact Respondent operates a residential program for young, homeless women who are pregnant or have infants. Respondent is required by applicable state law to maintain minimum staffing requirements or expose its license to disciplinary action. Respondent employed Petitioner as a residential staff assistant (RSA) from sometime in August 2002 until February 2, 2004. Petitioner worked five days a week during shift hours that varied during her employment. As an RSA, Petitioner's duties included assisting residents with care for their babies, babysitting, assisting residents with meal planning and budgeting, writing staff notes for parent and child, driving residents to and from medical appointments, and otherwise "assist mother and child in anyway." With the exception of excessive absences discussed hereinafter, it is undisputed that Petitioner was able to perform the essential functions of her job and did so satisfactorily to Respondent. Sometime in May 2003, Petitioner suffered a back injury while riding a horse. Petitioner suffered a herniated disc located at L5-S1. After the injury, Petitioner experienced right-side pain and sought treatment initially from chiropractic therapy and acupuncture. However, Petitioner's symptoms persisted. Petitioner sought medical treatment sometime prior to July 2003. An MRI conducted on July 21, 2003, diagnosed the herniated disc, and Petitioner subsequently underwent surgery on September 11, 2003, identified in the record as a laminectomy. By a physician's note on a prescription pad dated October 29, 2003, the treating physician authorized Petitioner to return to work on November 2, 2003. The physician's note did not prescribe any limitations for Petitioner. Petitioner returned to work on the prescribed date. On November 10, 2003, a director for Respondent required Petitioner and a co-worker to close the security gate to the facility. The electric motor for the gate was not functioning, and the two co-workers had to close a heavy security gate by manually pulling until the facility was secure. By a physician's note on a prescription pad dated November 14, 2003, the treating physician prescribed "light duty" for Petitioner. The light-duty restrictions were limited to "no pulling." A preponderance of evidence does not support a finding that Respondent required Petitioner to perform any "pulling" after November 10, 2003. Petitioner's back condition is an impairment within the meaning of the Americans with Disabilities Act, 42 U.S.C. Section 12112, et seq. (ADA), and the Florida Civil Rights Act, Chapter 760, et seq., Florida Statutes (2003) (FCRA). After surgery, Petitioner continued to experience pain in her right side and, due to inactivity, gained approximately 100 pounds. Petitioner's resulting impairment has limited her ability to work by impairing her ability to sit for long periods, pull, lift, bend to retrieve files from lower file drawers, and drive. Petitioner's impairment is permanent. The surgery did not eliminate Petitioner's impairment, and Petitioner is relegated to physical therapy and pain medication as the sole medical treatment for her condition. After more than two years of such treatment, Petitioner's impairment persists. Petitioner's impairment did not prevent her from satisfactorily performing her job duties other than attendance. Disputed requests for accommodations in the form of a particular chair that was comfortable for Petitioner and in the form of the location of files in higher drawers for easier access by Petitioner were not necessary for Petitioner to perform the essential functions of her job. It is undisputed that Petitioner satisfactorily performed her job duties without those accommodations. Petitioner's impairment caused her to be absent from work six of 20 workdays between November 2 and 30, 2003, and nine of 52 workdays between December 4, 2003, and February 2, 2004. The first six absences were excessive pursuant to Respondent's written Policy HR 103. In addition, Petitioner did not provide a supervisor with prior notice or cause of absences. However, each absence was required for Petitioner to either attend physical therapy or for Petitioner to recover from physical therapy. After the first absence, Respondent knew the causes of the absences. On December 3, 2003, Petitioner and Respondent executed a Corrective Action Plan (CAP) in which Petitioner agreed there would be no further unscheduled absences. Respondent agreed to reduce the time required in HR 103 for prior notice from eight to six hours. After executing the CAP, Petitioner had nine unscheduled absences during approximately 52 workdays between December 3, 2003, and February 2, 2004. Petitioner was unable to call in to her supervisors because of problems with telephones and voicemails, including those at the facility and cellular telephones maintained by supervisors. However, Petitioner knew of the telephone problem and knew her therapy schedule. A preponderance of evidence does not support a finding that Petitioner requested Respondent either to utilize an alternative method of communication or to arrange her work schedule to accommodate Petitioner's therapy schedule. On January 30, 2003, Respondent notified Petitioner that Respondent was changing Petitioner's employment status to "on-call" because Petitioner was unable to satisfy the attendance requirements of an RSA. Petitioner refused to accept the change in status due to the uncertainties of pay and the loss of benefits. On February 2, 2004, Respondent terminated Petitioner from her employment. Petitioner's impairment is neither a "disability" nor a "handicap" within the meaning of the ADA and FCRA, respectively. The impairment did not substantially limit Petitioner's ability to perform the major life activity of working. Petitioner's impairment did not prevent her from satisfactorily performing her job duties other than attendance. A preponderance of evidence does not support a finding that Petitioner's impairment precludes her from either a class of jobs or a broad range of jobs. Petitioner showed that she has made a reasonable effort to secure other employment without success. However, a preponderance of evidence does not support a finding that Petitioner's impairment is the cause of her inability to obtain employment. The Social Security Administration denied Petitioner's disability claim. The agency found that Petitioner has received treatment for her impairment and that the impairment does affect her ability to work. However, the agency found that Petitioner is "still capable of performing" the duties of an RSA.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not discriminate against Petitioner on the basis of a disability or handicap. DONE AND ENTERED this 31st of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Phyllis J. Towzey, Esquire Law Office of Phyllis J. Towzey, P.A. The Kress Building, Suite 401 475 Central Avenue St. Petersburg, Florida 33701 Theresa A. Deeb, Esquire Deeb & Brainard, P.A. 5999 Central Avenue, Suite 202 St. Petersburg, Florida 33710
Findings Of Fact Petitioner was employed for 22 years at G. Pierce Wood Memorial Hospital (GPWMH) as a human services worker I. She was a permanent career service employee. It is undisputed that Petitioner failed to report to work or to seek approval for leave after March 5, 1987. A notice was sent to Petitioner on or about April 14, 1987 by M. H. Townsend, Personnel Manager at GPWMH, informing her that an employee who is absent without authorized leave for three consecutive work days is deemed to have abandoned her position. On April 16, 1987 Petitioner signed a return receipt acknowledging receipt of this notice. She continued to be absent from her position without authorized leave and was notified on April 27, 1987 that she was deemed to have abandoned her position. Petitioner was therefore separated from her position with GPWMH. Petitioner offered no evidence to explain her unauthorized absence from March 5, 1987 to her separation on April 27, 1987. She testified she was not physically able to work, but did not support this testimony with any medical evidence. To the contrary, medical records introduced on behalf of Respondent indicate Petitioner was examined and determined to be able to return to light duty work in February, 1987. Respondent had thereafter assigned Petitioner to a light duty program consistent with her medical evaluation.
Recommendation The final hearing in this case was held on August 6, 1987, in Arcadia, Florida before Donald D. Conn, Hearing Officer with the Division of Administrative Hearings. The parties were represented as follows: Petitioner: Marjorie R. Miller, pro se 1002 Rainbow Avenue Arcadia, Florida 33221 Respondent: George Oujevolk, Esquire Post Office Box 129 Arcadia, Florida 33221 The issue in this case is whether Marjorie R. Miller (Petitioner) abandoned her position at G. Pierce Wood Memorial Hospital by being absent without authorized leave for three consecutive work days. Petitioner has requested the Department of Administration to review the facts of this case and to issue a ruling as to whether the circumstances constitute an abandonment of her position. At the hearings Petitioner testified on her own behalf and also called Georgia Edwards and May Robinson. Respondent called M. H. Townsend, Louise Bell, Denise Wood, and Ellen Walters. Respondent introduced eight exhibits. No transcript or proposed findings of fact have been filed.
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.
The Issue Validity of Emergency Rule 22 AER 76-1, Department of Administration. This case concerns Petitioner's challenge of the validity of Emergency Rule 22 AER 76-1, Department of Administration, State of Florida, on the ground that promulgation of the rule was an invalid exercise of delegated legislative authority. The petition specifically alleges that Respondent failed to make an adequate finding that an immediate danger to the public health, safety, or welfare warranted an emergency rule, and that there existed no such immediate danger which might have necessitated enacting an emergency rule. The petition further alleges that the procedure adopted by Respondent in promulgating the emergency rule was unfair and contrary to law. The petition was filed with the Division of Administrative Hearings on February 23, 1977, and thereafter assigned to the undersigned Hearing Officer. Prior to final hearing herein, Petitioner propounded written interrogatories and requests for admission from Respondent. The Respondent filed a "Notice of Objection" to the said interrogatories on grounds that judicial review is exclusive as to the agency's findings of immediate danger, necessity, and procedural fairness, as provided under subsection 120.54(9)(a)3, F.S., and that therefore the Hearing Officer has no jurisdiction over the matter. The parties stipulated that if Respondent's objection was resolved in favor of Petitioner, the interrogatories and answers submitted by Respondent thereto, together with supporting documents, would be admissible in evidence for all relevant purposes. For the reasons stated hereinafter in Conclusions of Law, it is determined that the Hearing Officer has jurisdiction in this case and, accordingly, the stipulated matters are accepted, as set forth below.
Findings Of Fact On April 26, 1976, the procedures for layoff of state career service employees contained in certain memoranda of the Department of Administration (DOA) and the Department of Health and Rehabilitative Services were determined to be invalid rules by a Hearing Officer of the Division of Administrative Hearings. (J. Richard Stevens v. DHRS and DOA, DOAH Case No. 75-2024R). The specific documents held to be invalid rules were Personnel, Policy and Procedure Memorandum No. 74-7, Subject: Guidelines for Preparing Layoff Procedures, issued by the DOA, and Directive No. 8.07, Dept. of HRS, Subject "Layoff and Reemployment of Personnel." The DOA procedures were effective on July 1, 1974, and implemented Rule 22A-7.10(H)(3), Florida Administrative Code. On May 25, 1976, the First District Court of Appeal denied a motion of the DOA for a stay of the Hearing Officer's Final Order (Case No. CC-101). However, the Hearing Officer granted a stay of his Final Order until June 21, 1976. On April 6, 1977, the First District Court of Appeal upheld the Final Order of the Hearing Officer in the Stevens case (Case No. CC-101,156.) A 1976 amendment of subsection 110.061(2)(a), required specified layoff procedures to be developed by Respondent. (Chapter 76-116, Laws of Florida) Federal standards for a merit system of personnel administration affecting all state agencies receiving federal grant-in-aid funds that were in effect in 1976 require the establishment of certain procedures for layoff of permanent state employees. (Testimony of Dean, Attachment 5 to Respondent's memorandum) Respondent's personnel officers were aware that there was impending legislation to abolish some 2,000 state employee positions, effective June 30, 1976, that would require the existence of layoff criteria and procedures for orderly and fair implementation (Testimony of Dean). In view of the foregoing, DOA,during the latter part of May and early June, 1976, began the process of formulating and adopting an emergency rule to cover layoff procedures. Although consideration was given to the possibility of following normal rule-making procedures, it was determined that there was insufficient time available to promulgate a rule in that manner. (Testimony of Dean) Notice of the proposed emergency rule was prepared and published in the June 11, 1976, issue of the Florida Administrative Weekly. The notice stated that the rule would become effective upon filing with the Secretary of State, and that a copy could be obtained by writing to the state personnel director. It provided in part as follows: "SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO PUBLIC HEALTH, SAFETY AND WELFARE: Recent changes in law have cast doubt upon the proper current Career Service layoff procedure. Because numerous layoffs may be required before a permanent rule could become effective, it is essential to the welfare of the State that all doubt be removed by adoption of a definite procedure, both for the benefit of the State as employer and of the affected employees. REASONS WHY PROCEDURE USED IS FAIR UNDER THE CIRCUMSTANCES: The emergency rule is based on the recommendations of the Career Service Commission contained in its report of November 7, 1975, following public hearings October 23 and 24, 1975, incorporating any applicable guidelines approved by the Secretary of Administration." The proposed emergency rule was placed on the agenda of the Administration Commission for June 15, 1976, and, after discussion, the rule was amended and adopted by that body. On the same date, the emergency rule was filed with the Department of State. (Composite Exhibit 1a-d, Exhibit 2) By letter of June 16, 1976, Petitioner was informed by the personnel officer of the Department of Agriculture and Consumer Services that his position of Agriculture Investigator Supervisor in the Division of Animal Industry had been abolished, effective June 30, 1976, and that, in accordance with Department of Administration Emergency Rule No. 22 AER 76-1, he was being notified of the proposed action. Pursuant to that notification, Petitioner was laid off as of June 30, 1976. He thereafter filed an appeal with the Career Service Commission on July 7, 1976. (Testimony of Shelby, Exhibits 3, 4)
The Issue The issue in this case is whether Respondent discriminated against Petitioner for the reasons stated in the Charge Of Discrimination and Petition For Relief.
Findings Of Fact Respondent is a Florida corporation engaged in the business of manufacturing, distributing, and selling cement and concrete. Respondent operates throughout the state and employs a substantial number of people. Respondent maintains an Equal Employment Opportunity Policy (the "policy"). Respondent promulgates the policy to all employees in its various facilities throughout the state. Respondent encourages the employment of disabled but qualified individuals. Respondent routinely makes reasonable accommodations for disabled employees. Respondent first employed Petitioner on June 29, 1981, but terminated that employment. Respondent subsequently rehired Petitioner in February, 1983, as a ready-mix driver and front end loader, and also as an occasional batcher. Respondent employed Petitioner in various positions until Petitioner resigned his last position on October 5, 1993. During his employment, Petitioner suffered physical injuries that resulted in both temporary and permanent impairment. All of the injuries occurred from work-related accidents. Petitioner suffered no other physical impairment. Petitioner is not physically disabled as a result of the physical injuries he suffered from his work-related accidents. The injuries Petitioner suffered did not substantially limit his ability to perform his duties and responsibilities. Respondent did not discriminate against Petitioner on the basis of Petitioner's physical impairment. Respondent provided Petitioner with reasonable accommodations. The first injury to Petitioner occurred on August 5, 1986. While driving a cement truck for Respondent, Petitioner drove his truck off of the road to avoid hitting a car that was stopped in front of him. Petitioner was thrown into the steering wheel and injured his stomach. Petitioner also injured his back and was treated by a chiropractor. On October 6, 1987, Petitioner reached maximum medical improvement under Workers' Compensation guidelines. His back injury left him with a total permanent impairment of seven percent. Petitioner returned to work on March 5, 1987. Respondent offered both light duty and regular work to Petitioner from October 6 through March 27, 1987. However, Petitioner refused to return to work prior to March, 1987, due to a labor dispute involving Teamsters Local 769. When the labor dispute was resolved, Petitioner returned to work as a batcher. The position was not defined specifically as a light duty job. However, it did accommodate the work restrictions prescribed after his previous accident. Petitioner subsequently resumed driving a truck for the Respondent. Petitioner was able to drive without restrictions. On March 17, 1988, Petitioner had the latest in a series of accidents as a truck driver for Respondent. On March 21, 1988, Respondent notified Petitioner that he had exceeded the number of accidents permitted under Respondent's "Accident Classification Policy" and prohibited Petitioner from operating any company vehicle for Respondent until further notice. On January 29, 1990, Petitioner passed a physical examination to be recertified as physically qualified to drive a truck. The examining physician certified Petitioner as physically able to drive a truck. Petitioner verified on the examination form that he did not suffer from any permanent defects resulting from illness, disease, or injury. Petitioner continued treatment for chronic discomfort caused by the back injury he sustained in August 1986. Petitioner's chiropractor intermittently prescribed light duty to alleviate Petitioner's discomfort. On September 6, 1991, Respondent attempted to accommodate Petitioner's chronic discomfort. Respondent offered Petitioner a position as a dispatcher in Respondent's Cocoa facility. The dispatcher position was not a light duty job. However, it did accommodate Petitioner's intermittent need for light duty work to alleviate his discomfort. Petitioner declined the dispatcher position. Petitioner elected to replace a junior truck driver in another location. Petitioner's chronic back discomfort continued to cause absences from work and frequent need for light duty work. However, no permanent light duty positions existed. Respondent repeatedly created temporary light duty work for Petitioner in attempts to provide Petitioner with employment. Respondent experienced increasing difficulty finding suitable work for Petitioner. The vast majority of positions involved a greater degree of manual labor than Petitioner was able to perform under his work restrictions. On August 13, 1992, Respondent's Worker's Compensation carrier had Petitioner examined by an orthopedic surgeon. At the time, Petitioner was being treated once a week by his chiropractor. Petitioner had a full range of motion in his cervical region, shoulders, elbows, wrists and fingers. X-rays showed no fracture, dislocation, or congenital abnormality. The orthopedic surgeon diagnosed Petitioner as suffering from a cervical sprain or strain which had become somewhat chronic in nature. He found that Petitioner had reached maximum medical improvement with a total permanent impairment of four percent according to Workers' Compensation guidelines. The orthopedic surgeon determined that Petitioner was able to work on a regular basis without restrictions. He concluded that Petitioner's permanent impairment did not interfere with the performance of his occupation. Petitioner aggravated his back injury while driving a truck. Petitioner's chiropractor excused him from work from September 28 through September 30, 1992, and placed him on light duty from December 10, 1992 through January 14, 1993. On December 17, 1992, the chiropractor sent a letter to Respondent's Risk Management Director discussing Petitioner's work restrictions. The letter designated Petitioner's work restrictions as: no prolonged sitting; no lifting over 30 pounds; no repetitive bending or twisting; and no climbing ladders. Climbing stairs was permitted. Petitioner's work restrictions continued in effect during the remainder of Petitioner's employment. In December, 1992, Respondent was unable to create temporary light duty work for Petitioner. Respondent had no other work available that accommodated Petitioner's work restrictions. Petitioner applied for Worker's Compensation benefits and apparently sought other employment for approximately two weeks. On January 5, 1993, Respondent located a suitable temporary position as a batcher at the Tarmac plant in Melbourne, Florida. Petitioner temporarily replaced the permanent batcher who was out on an extended illness. The batcher position was not a light duty position. However, it did accommodate Petitioner's work restrictions. After the permanent batcher returned, Respondent continued to find work Petitioner could perform. Respondent found temporary light duty work at the Melbourne plant. Respondent created a temporary position for an "aggregate dispatcher." Two employees performed the functions of the aggregate dispatcher in addition to their other regular job duties. The aggregate dispatcher position was not a position for which Respondent had a need. Respondent created the position for Petitioner in an attempt to accommodate his work restrictions and to keep him working. Respondent never represented the position as a permanent solution to Petitioner's need for light duty work. In July 1993, the permanent dispatcher at the Melbourne plant asked to move to another position. Respondent offered the full-time position to Petitioner. The dispatcher position was not a light duty position. However, it did accommodate Petitioner's work restrictions. Petitioner accepted the dispatcher position at the Melbourne plant. On August 1, 1993, Respondent promoted Petitioner to dispatcher and increased Petitioner's salary accordingly. Petitioner complained that he was unable to do the work by himself. Petitioner requested help to perform the job. The dispatcher job at the Melbourne plant had always been performed by one person and was routinely performed by one person at other locations. However, Respondent instructed Petitioner's supervisors to give him assistance when needed. In late August 1993, Petitioner stated to his supervisors that he could not perform the duties of dispatcher because he could not cope with the stress. Petitioner asked to be relieved of his responsibilities and resigned as dispatcher. No other suitable work was available. Petitioner agreed to remain in the dispatcher position until a replacement was hired and trained. A dispatcher from another plant, a 42 year-old female, transferred and took over the job. Petitioner's last day of employment was October 5, 1993. Unknown to Respondent, Petitioner was suffering from a severe major depression when he resigned from Respondent's employment. Sometime after August 13, 1996, an Administrative Law Judge for the U.S. Social Security Administration found that Petitioner had been disabled, within the meaning of the Social Security Act, since October 5, 1993. Petitioner suffered from a dysthymic disorder. He had a history involving a depressed mood. Petitioner did not respond to treatment. Petitioner lost his appetite, suffered insomnia, lethargy, inability to modulate anger in an effective manner, and disinterest in almost all activities. Petitioner was disabled. He was substantially limited in his ability to perform a major life activity such as work. Petitioner was significantly restricted, when compared with the average person having similar qualifications, from performing a class of jobs or a broad range of jobs in various classes. Petitioner entertained thoughts of suicide. He did not have the ability to follow instructions or to function independently. He had very limited concentration. His memory was impaired. Petitioner had marked deficiencies in concentration, persistence, pace, daily living skills, and socialization. Petitioner's disability prevented him from completing tasks in a timely manner. He suffered episodes of deterioration or decompensation in work resulting in withdrawal from the situation or exacerbation of his symptoms. Respondent did not discriminate against Petitioner on the basis of Petitioner's disability. Petitioner's disability existed for some time before Petitioner resigned from Respondent's employment. During that time, Respondent repeatedly provided Petitioner with reasonable accommodations to enable Petitioner to continue his employment with Respondent. Petitioner performed the duties of dispatcher satisfactorily prior to his resignation. There were no complaints about his work. Respondent had no reason to terminate Petitioner from the position. Petitioner did not express an interest in the possibility of alternative employment with Respondent. Petitioner did not request any further accommodations to enable him to continue working for Respondent. Petitioner's physical impairment did not prevent him from performing the dispatcher job. The dispatcher job at the Melbourne plant no longer exists because Respondent has undergone major restructuring. The functions of the dispatcher are presently divided among different individuals. Some of the functions are no longer performed at individual plants but are performed at centralized locations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner. DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission On Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Sharon Moultry, Clerk Florida Commission On Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Jack L. Shoemaker, pro se 106 Cameron Street, Southeast Palm Bay, Florida 32909 Charles S. Caulkins, Esquire Wendy J. Smith, Esquire Fisher and Phillips 2300 Nations Bank Tower One Financial Plaza Fort Lauderdale, Florida 33394
The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was formerly employed as a Tax Auditor II in Respondent's Fort Lauderdale office. In May, 1987, Petitioner filed a charge against Respondent with the Equal Employment Opportunity Commission (EEOC). The charge was docketed as Charge No. 150871115. Eleven months later, Petitioner filed a second charge against Respondent with the EEOC. This second charge was docketed as Charge No. 150881243. By letter dated May 3, 1988, Petitioner requested that he be granted leave without pay "until both EEOC investigations [were) over." Petitioner's request resulted in a memorandum of understanding and agreement between Petitioner and the Acting Director of Respondent's Division of Audits, Glenn Bedonie. The memorandum was signed by Bedonie on May 9, 1988, and by Petitioner the following day. It provided in pertinent part as follows: This memorandum will confirm our agreement that the Department is granting your request for leave without pay until such time as the two Equal Employment Opportunity Commission (EEOC) investigations are completed and the findings or conclusions are rendered and final. This action is based upon your voluntary request dated May 3, 1988 attached herein. You will remain on approved leave without pay commencing at 8:00 a.m., Wednesday, May 11, 1988 for (12) twelve calendar months or until a finding or conclusion has been rendered and becomes final by the EEOC in both of the above EEOC investigations. If a finding is not so rendered in both investigations within (12) calendar months, and if you make a timely request to this office the Department agrees to request an extension from the Department of Administration of your leave of absence without pay under Rule 22A- 8.016(2), F.A.C. Such extension is to last until such time as an investigative finding or conclusion is rendered and becomes final in both investigations. On May 10, 1988, the same day he signed the foregoing memorandum of understanding and agreement, Petitioner advised his supervisor in writing that the following were "two addresses where mail will reach me:" P.O. Box 22-2825, Hollywood, Florida 33022 and 8311 Dundee Terrace, Miami Lakes, Florida 33016. Petitioner did not indicate any other manner in which he could be contacted. By letter dated August 31, 1988, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No. 150871115, that the evidence obtained during the investigation [did] not establish a violation of the statute." The letter also contained the following advisement: This determination does not conclude the processing of this charge. If the charging Party wishes to have this determination reviewed, he must submit a signed letter to the Determination Review Program which clearly sets forth the reasons for requesting the review and which lists the Charge Number and Respondent's name. Charging Party must also attach a copy of this Determination to his letter. These documents must be personally delivered or mailed (postmarked) on or before 09-14-88 to the Determinations Review Program, Office of Program Operations, EEOC, 2401 E. Street, N.W., Washington, D.C. 20507. It is recommended that some proof of mailing, such as certified mail receipt, be secured. If the Charging Party submits a request by the date shown above, the Commission will review the determination. Upon completion of the review, the Charging Party and Respondent will be issued a final determination which will contain the results of the review and what further action, if any, the Commission may take. The final determination will also give notice, as appropriate, of the Charging Party's right to sue. Petitioner requested review of the Miami District Director's determination in Case No. 150871115. By letter dated April 28, 1989, Petitioner and Respondent were notified of the results of that review. The body of the letter read as follows: The Commission has reviewed the investigation of this charge of employment discrimination and all supplemental information furnished. Based upon this review, we agree with the determination issued by our field office and hereby issue a final determination that the evidence obtained during the investigation does not establish a violation of the statute. Therefore, the Commission dismisses and terminates its administrative processing of this charge. As the charge alleged a Title VII violation, this is notice that if the Charging Party wishes to pursue this matter further, (s)he may do so by filing a private action in Federal District Court against the Respondent(s) named above within 90 days of receipt of this Determination. IF CHARGING PARTY DECIDES TO SUE, CHARGING PARTY MUST DO SO WITHIN 90 DAYS FROM THE RECEIPT OF THIS DETERMINATION; OTHERWISE THE RIGHT TO SUE IS LOST. By letter dated March 8, 1989, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No, 150881243, that the "evidence obtained during the investigation [did) not establish a violation of the statute," The letter further advised: If the Charging Party does not request a review of this determination by March 22, 1989 this determination will become final the following day, the processing of this charge will be complete, and the charge will be dismissed. (This letter will be the only letter of dismissal and the only notice of the Charging Party's right to sue sent by the Commission.) FOLLOWING DISMISSAL, THE CHARGING PARTY MAY ONLY PURSUE THIS MATTER FURTHER BY FILING SUIT AGAINST RESPONDENT(S) NAMED IN THE CHARGE IN FEDERAL DISTRICT COURT WITHIN 90 DAYS OF THE EFFECTIVE DATE OF THE DISMISSAL. Therefore, in the event a request for review is not made, if a suit is not filed by June 21, 1989 the Charging Party's right to sue will be lost. Petitioner did not request review of the District Director's determination in Case No. 150881243. Therefore, this determination became final on March 23, 1989. On May 5, 1989, Respondent's Personnel Officer, William P. Fritchman, sent Petitioner a letter by certified mail, return receipt requested, directing Petitioner to report to work immediately. The letter was mailed to P.O. Box 22- 2825, Hollywood, Florida 33022. The body of the letter provided as follows: This letter is to notify you that your tax auditor II position in Fort Lauderdale, Florida is ready for you to return to work. Your return to work will be effective immediately upon your receipt of this letter. The Department of Revenue agreed to your request for a leave of absence without pay for 12 months or until EEOC in Miami had concluded its investigation of your EEOC charges, numbers 150-88-1234 [sic] and 150-87-1115. As you know, EEOC has now concluded its investigations and issued its findings in both cases. The Department considers the reason for granting the leave of absence to be expired. Please contact Mr. Bill Hammock, Chief of Audit Activity or Mr. Howard Maxwell, Field Audit Supervisor, immediately upon receipt of this letter concerning your intentions regarding your actual reporting to work in Fort Lauderdale. Their phone number is (904) 488-0310. Your immediate supervisor will be Ms. Mary Jane Myscich. Please report to her concerning any necessary details surrounding your reporting to work. If you do not contact either of the above individuals as instructed in this letter within three workdays from the date you receive this letter, the Department will consider that you have been on unauthorized leave without pay for that three workday period. Such unauthorized leave will be considered to be abandonment of position and a resignation from the Department of Revenue as outlined under Rules 22A- 7.010(2) and 22A-8.002(5). Please contact me at (904) 488-2635 if you have any questions concerning this matter. Efforts to deliver the letter to Petitioner were unsuccessful. It therefore was subsequently returned to Fritchman as "unclaimed." By letter dated May 7, 1989, but not mailed until May 10, 1989, Petitioner requested "an extension of leave without pay status for six additional months."/1 In support of his request, Petitioner erroneously stated the following in the letter: Findings and conclusions of both EEOC Charge Nos.:150871115 dated 5/13/87 and 150881243 are as EEOC has informed you are rendered but not final. The former charge is still under appeal. Petitioner's May 7, 1989, letter, as well as the envelope in which it had been sent, reflected that Petitioner's current mailing address was 8311 Dundee Terrace, Miami Lakes, Florida 33316. Accordingly, on May 12, 1989, utilizing a next- day delivery service, Fritchman sent to that address the following letter informing Petitioner of the denial of his leave request: I am in receipt of your letter sent May 10, 1989 to Mr. Bedonie. In your letter you request the Department to seek an extension of your leave without pay for an additional six months. For the reasons expressed in my letter to you dated May 5, 1989, copy attached, your approved leave of absence is concluded. Under the written agreement between you and the Department the two EEOC investigations have concluded; therefore the reason for your leave no longer exists. A copy of my letter to you dated May 5, 1989 is attached to this letter and incorporated by reference as if fully set forth. If you have already received a copy of that letter, then your return to work is effective on that date of your receipt. You are expected to resume your duties as a Tax Auditor II. Please contact me at (904) 488-2635 if you have any questions concerning this matter. The next-day delivery service unsuccessfully sought to deliver this letter and attachment to Petitioner at 8311 Dundee Terrace, Miami Lakes, Florida 33316. On May 18, 1989, the letter and attachment were returned to Fritchman. Later that same day, Fritchman attempted to contact Petitioner by telephone, but was unable to reach him. As of May 18, 1989, Petitioner had not yet returned to work, notwithstanding that he had not received authorization to be absent at any time subsequent to the expiration of the leave he had been granted pursuant to the May, 1988, memorandum of understanding and agreement. In view of Petitioner's failure to report to work, Fritchman sent to Petitioner's Hollywood post office box a letter dated May 19, 1989, informing Petitioner that, because he had been absent without authorized leave for three consecutive workdays, he was deemed to have abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. Fritchman further explained in the letter as follows: You did not report to work on May 11, 1989 under the terms of your agreement with the Department. You were therefore on unauthorized leave without pay effective May 11, 1989 or on receipt of the May 5, 1989 letter, whichever occurred first. You have not reported to work as agreed in the May 11, 1988 agreement. You are not entitled to rely on a unilateral request for an extension of leave without reporting to work. Rule 22A-8.002(5)(b), F.A.C. states: "If an employee's request for leave is disapproved and the employee takes unauthorized leave, the agency head shall place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service." You did not report to work on May 11, 1989 nor any day after that. The Department considers you have been on unauthorized leave of absence for three consecutive workdays. The Department considers that effective certainly no later than 5:00 p.m., Thursday, May 18, 1989 you have abandoned your position and resigned from the Career Service. The Department's records will indicate that this is a voluntary resignation from employment with the Department. It is this determination that Petitioner abandoned his position and resigned from the Career Service which is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1989. STUART M. LERNER 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 October, 1989.
The Issue Whether or not Petitioner abandoned her position in accordance with the terms of Rule 22A-7.010(2) F.A.C.
Findings Of Fact At all times material, Petitioner was employed as an FSDB groundskeeper. Robert "Curly" Schopmann, the Grounds Supervisor and Petitioner's immediate supervisor, considered her to be "a very good employee" during her two years of employment prior to June 19, 1990. Petitioner's performance ratings confirmed Mr. Schopmann's assessment that Petitioner's quantity and quality of work was excellent during that period of time. Petitioner suffered an on-the-job accident on March 20, 1990 for which the employer and the Department of Insurance, Division of Risk Management accepted responsibility under Chapter 440 F.S., "The Florida Workers' Compensation Law." In June, 1990, Petitioner requested that the employer provide further medical treatment by an orthopedic physician, which further medical treatment was approved and provided. As a consequence thereof, Petitioner was off work from June 19 to mid-October 1990. Dr. Charles, Petitioner's authorized treating orthopedic physician, prepared a list of "job limitations" dated October 3, 1990 (Heilmann Exhibit 2). There is no evidence Petitioner was provided with a copy of this until after her termination. Sometime between October 1 and October 5, 1990, a rehabilitation consultant/specialist and registered nurse also prepared another, slightly more stringent list of limitations (DOE Exhibit B) which was not "verified" (approved) by Dr. Charles until October 29, 1990. Since Dr. Charles did not sign this second, more restrictive list until October 29, 1990, it must be assumed that neither Risk Management nor FSDB personnel saw it until after that date. Petitioner testified that she did not see it until after her termination. Effective October 13, 1990, Dr. Charles formally released Petitioner to do light work. The day before, Petitioner received notification concerning her release for light work from Risk Management (DOE Exhibit A). In that October 12, 1990 letter, Risk Management notified Petitioner that she was to either return to her old job and do light work while receiving temporary partial disability payments under the workers' compensation law or she was to make a good faith job search among other employers as also contemplated by that law. An abbreviated list of physical limitations based on Dr. Charles' October 3, 1990 list was also given by Risk Management to the Petitioner in its October 12, 1990 letter. By mutual agreement with the FSDB personnel office, Petitioner reported for light duty work at FSDB on Thursday, October 18, 1990. Mr. Schopmann first suggested that Petitioner work at her own speed outside but acceded to Petitioner's rejection of the use of a scooter to get around and do outdoors groundskeeping when she told him the scooter was "too bumpy" for her injured back. Either of Dr. Charles' job restrictions/physical limitations lists would have permitted Petitioner to work with hand-sized garden tools, a scooter, a riding mower, or a rolling seat for 80% of her day outside with only 20% of her day inside, provided she moved around and rested as needed with no lifting over 15 pounds and no squatting, crawling, bending, twisting, rotating, kneeling, or climbing inside or outside. When she said she could not ride the scooter, Mr. Schopmann told Petitioner to pot plants and trim the plants in the pots inside the greenhouse and that when she got tired, she should sit down and answer phones in the office before returning to pot more plants in the greenhouse. This instruction was in accord with the limitations for light work placed on Petitioner by her doctor in his October 3, 1990 list of limitations. It also was within the parameters of the abbreviated list relayed to Petitioner in Risk Management's letter of October 12 and those of the more stringent list the doctor later approved on October 29, 1990. At formal hearing, Petitioner admitted that she had understood that the supervisor's instructions included answering phones in the office and that she was otherwise assigned to the greenhouse. On Thursday, October 18 and Friday, October 19 and on October 22-24, she went to the greenhouse and office but did not restrict herself to just the jobs assigned by Mr. Schopmann. Instead, she tried to do all the usual work that is required of full-time, unimpaired greenhouse personnel. This additional work was considerably in excess of the limitations placed on her by her treating physician in either his October 3 or October 29 lists of limitations and was never directly assigned by her supervisor. The Petitioner asserted that she did this additional work because she was relying on the information provided in the October 12 Risk Management letter and in a telephone conversation she had had with Ms. Battle of FSDB's personnel office prior to October 18, and because she personally had never seen either of Dr. Charles' lists of limitations. On Wednesday, October 24, 1990, Petitioner left work at noon saying that she had a doctor's appointment, which she in fact did not have. Instead, she went home to rest. On Thursday, October 25, 1990, she called in sick and, as it turned out, she did not return to work after that date. The Petitioner testified that she did not return to work after October 24 because it was too painful for her to continue the work she had attempted. On October 26, 1990, a letter was sent from FSDB by Ms. Stephanie Battle notifying Petitioner that she was expected to come to work unless she had received a doctor's statement and that she was expected to return to work no later than Tuesday, October 30, 1990. Because October 26, 1990 was a Friday, it was Ms. Battle's intention that Petitioner would receive the letter on Saturday, October 27 or on Monday, October 29, and would then be able to obtain a doctor's certificate before the employer's October 30 deadline, if, in fact, Petitioner were eligible to receive a doctor's certificate at all. The October 26, 1990 letter sent by Ms. Battle provided in pertinent part: You are required to return to your job with the approved restrictions immediately. If you cannot return to work, you must provide this office with a letter from your attending physician saying why you are unable to perform your job, what the inclusive dates are that you cannot work and the approximate date of your return. At the present time you are in an unapproved leave without pay status. I expect to hear from you no later than Tuesday morning, October 30, 1990. On October 29, 1990, petitioner telephoned Stephanie Battle and informed her that she had received Ms. Battle's October 26, 1990 letter, that she could not work, but that Dr. Charles would not give her a "no work disability slip." At that time, Ms. Battle told Petitioner that she must return to work and asked if Petitioner had told her supervisor that she could not physically do the work assigned. Petitioner admitted to Ms. Battle that she had not yet discussed the problem with her supervisor. Later on October 29, Petitioner spoke on the telephone with Mr. Schopmann. Mr. Schopmann told Petitioner that she had to come back to work on October 30 or bring a doctor's certificate saying that she could not work at all. At that time, Petitioner indicated to Mr. Schopmann that she was aware that if she did not come back to work or provide some doctor's certificate she would lose her job. Whether Petitioner was consciously aware of the abandonment rule or merely thought she would be fired for not coming to work is not clear from the record. Petitioner asserted that she called Mr. Schopmann a second time on November 1, still seeking to retain her job; Mr. Schopmann denies that such a telephone call ever took place. It does not appear that Petitioner and Mr. Schopmann ever had a meeting of the minds that Petitioner was attempting to do more strenuous work than Mr. Schopmann thought he had assigned her to do, but at no time did Mr. Schopmann urge Petitioner to work harder. In her testimony, Petitioner blamed the employer far not making her fully aware of the limitations placed on her by her doctor. Petitioner also asserted that Ms. Battle had telephoned Dr. Charles on October 24, 1990 to see if the Petitioner's job assignments in the greenhouse and office exceeded his prescribed limitations for Petitioner and, further, that in so doing, Ms. Battle had misrepresented to the doctor the tasks that Petitioner was, in fact, doing and that Petitioner believed that it was due to Ms. Battle's misrepresentations that Dr. Charles would not give Petitioner a certificate of "no work." Ms. Battle confirmed that she had called Dr. Charles at some point and represented to him the type of light work that she understood from Mr. Schopmann that Petitioner was doing in the greenhouse and the office. However, at the time she telephoned Dr. Charles, Ms. Battle also did not know that Petitioner had physically attempted more than she had been assigned to do by Mr. Schopmann. At the time of her phone call, whenever it may have been, Dr. Charles told Ms. Battle [admissible hearsay pursuant to Section 120.58(1) F.S.] that Petitioner could do the light work described by her and assigned by Mr. Schopmann. Petitioner admitted that she did not consult her doctor in his office on October 24-25, that she never spoke personally with Dr. Charles during this period of time or tried to get a "no work certificate" from him personally prior to October 30, 1990, and that she dealt with him solely through his receptionist. However, the doctor's October 29, 1990 list of limitations and Petitioner's recitation of what the receptionist told her [admissible hearsay pursuant to Section 120.58(1) F.S.] supports a finding of fact that at all times material, Dr. Charles felt Petitioner could continue to do the light work actually assigned by Mr. Schopmann, a description of which had been related to him by Ms. Battle, and that the doctor also felt that the Petitioner could do all the light work which the doctor later listed on his October 29, 1990 list. Petitioner never presented a medical certificate to her employer. There was no evidence at formal hearing of whether or not the Petitioner had any accrued annual or sick leave that she could draw on, but it is clear that she never applied for authorized leave. The Petitioner never returned to work. On November 1, 1990, Mr. Schopmann notified the FSDB personnel office that Petitioner had not returned to work for three consecutive days, that he considered her to have abandoned her position, and that he recommended her dismissal on that basis. (DOE Exhibit D) In a letter dated November 2, 1990, Mr. Sam Visconti, FSDB Personnel Director, notified Petitioner that she was deemed to have abandoned her position due to her absence on October 29, 30, 31, and November 1 (sic, see Findings of Fact 12- 13), and that she was dismissed based on Rule 22A-7.010(2)(a), F.A.C. That letter reads in pertinent part: You failed to report or call in to work for four (4) consecutive work days on October 29, 30, 31, and November 1, 1990. In accordance with Chapter 22A-7.010(2), of the Florida Administrative Code, State Personnel Rules and Regulations, you have abandoned your position. Abandonment of position is considered and treated as a resignation from your job. Your resignation is effective 12:01 a.m., November 2, 1990. Petitioner had been on unauthorized leave without pay since October 24, 1990. However, due to the terms of Ms. Battle's October 26, 1990 letter, the only three days which could be legitimately counted against Petitioner under the abandonment rule were October 30 and 31, and November 1, 1990. Petitioner is angry about the on-the-job accident and how it occurred. She testified that as of the date of formal hearing she continues to see Dr. Charles professionally and that she would not do so if she were not in pain and really injured, but she produced no medical evidence that she was physically unable to report for work at all on October 30 and 31, and on November 1, 1990 or that she was unable on those dates to do the jobs contained in Dr. Charles' October 29, 1990 list of limitations.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that Petitioner abandoned her position by unreasonable absence on October 30 and 31 and November 1, 1990. DONE and ENTERED this 30th day of April, 1991, in 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 30th day of April, 1991.
