The Issue Whether Respondent's employment should be terminated "for being absent without approved leave," as recommended in the Superintendent of Schools of the School District of Palm Beach County's Petition for Involuntary Resignation.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the School District. Systemwide testing programs in the School District are coordinated by the School District's Department of Research, Evaluation, and Accountability (DREA). At all times material to the instant case, Marc Baron headed DREA. DREA operates a test distribution center. Cherie Boone is now, and was at all times material to the instant case, in charge of the DREA test distribution center. Ms. Boone supervises four employees. As their supervisor, she is "responsible for [among other things, their] time and attendance." Respondent is employed as a materials handling technician with the School District. At all times material to the instant case, he was assigned to work in the DREA test distribution center under the direct supervision of Ms. Boone. As a materials handling technician employed by the School District, Respondent is a member of a collective bargaining unit represented by the National Conference of Firemen & Oilers, Local 1227 (NCF&O) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School District and NCF&O (NCF&O Contract). Article 7 of the NCF&O Contract discusses "employees['] contractual rights." It provides as follows: SECTION 1. Probationary Employees All newly hired or rehired employees may be subject to a probationary period of ninety (90) workdays. Employees who have not completed such period of employment may be discharged without recourse. Probationary employees shall not be eligible for any type of leave except accrued sick leave, annual leave, or short term unpaid leave (due to illness) not to exceed five (5) days. SECTION 2. Permanent Employees Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the NFC&O Contract addresses the subject of "[m]anagement [r]ights." It provides as follows: NCF&O and its members recognize the responsibility of the District to operate and manage its affairs in all respects in accordance with its responsibilities as established by law and as delegated by the State Board of Education; and the powers of authority which the District has not officially agreed to share by this agreement, are retained by the District. It is the right of the District to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the District to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons, provided, however, that the exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequences of violating the terms and conditions of this agreement in force. The District has the sole authority to determine the purpose and mission and the amount of the budget to be adopted by the School Board. The District and NCF&O agree that the District has and retains unaltered, its legal right to select, assign, reassign, or relocate any of its employees, and to carry out its mission under the law and State Board of Education Regulations, unless otherwise specifically enumerated herein. Except to the extent it has been done prior to May 26, 1998, no bargaining unit work which would result in the loss of jobs by members of the bargaining unit, shall be contracted out without prior consultation with the Union. It is understood that changes under this Article may not be arbitrary and capricious, and it is agreed that the District has those rights which are enumerated within Florida Statute 447; however, nothing herein shall relieve the parties of their ability to request impact bargaining. Among the "rules and procedures" that the School District, through the School Board, has established in exercising its "[m]anagement [r]ights" are School Board Directive 3.27 and School Board Policy 6Gx50-3.80, which provide, in pertinent part, as follows: School Board Directive 3.27 * * * Resignations. If employees desire to be released from their employment contract the following procedures are to be followed: * * * c. When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employee stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. * * * Suspension/Termination. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes.[2] * * * Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement. * * * 6. When a recommendation for suspension and termination is made, the procedures listed in School Board Policy 3.27 shall be followed. * * * School Board Policy 6Gx50-3.80 A leave of absence is permission granted by the Board, or allowed under its adopted policies, for an employee to be absent from duty for specified periods of time with the right of returning to employment on the expiration of the leave. All absences of School Board employees from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance by the School Board and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. No leave except military leave shall be granted for a period greater than one (1) year. A new leave application may be filed and granted at the expiration of leave, but automatic renewals of leave shall not be allowed. Leave may be with or without pay and provided by law, rules of the State Board of Education, School Board policy, and negotiated contracts. If the terms of the collective bargaining agreement differ from this Policy, the language of the employee's agreement will take precedence. The following types of leave are available for School District employees: Leave for personal reasons Annual leave for 12-month personnel Sick leave Catastrophic leave Injury or illness in-line-of-duty leave Sabbatical leave Temporary military leave Regular military service leave Professional leave and extended professional leave Charter school leave Voluntary/extended military leave Leave of absence for the purpose of campaigning for political office Personal leave including maternity/ recovery and child care Paid Leaves * * * c. Sick Leave * * * iv. An employee requiring more than thirty (30) working days of paid leave for recovery may be required to submit medical evidence at reasonable intervals supporting the need for additional leave. * * * Sick leave claims shall be honored as submitted by the employee for personal illness, as well as illness or death of father, mother, brother, sister, husband, wife, child or other close relative or member of the employee's own household. Sick leave without pay may be granted for employees who have used all accumulated sick leave, but who would otherwise qualify for sick leave. The Superintendent may require a doctor's statement of verification of illness. A request to the Superintendent for a verification of claim may be initiated by the principal or supervisor. * * * Unpaid Leaves * * * e. Personal Leave -- An employee requesting short-term or long-term personal leave shall make written application to the supervisor, stating reasons for such leave. The Board shall satisfy itself in terms of the need of the requested leave. Personal leave may be used to extend a leave of absence due to sickness when that sickness has extended beyond all compensable leave for the duration of up to one (1) calendar year when supported by doctor's statements verifying the necessity of the extended leave. An employee requesting return to duty who has served efficiently and exhibited those qualities called for in the position held prior to such leave will be given every consideration for reemployment provided the conditions of employment have been met and the request is supported by a doctor's statement certifying that his physical condition is satisfactory to return to normal duties. * * * Article 17 of the NCF&O Contract, as noted in Article 7 of the contract, deals with the "[d]iscipline of [e]mployees." It provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee’s personnel file and shall not be used to the further detriment of the employee, unless there is another reasonably related act by that same employee within a twenty-four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee’s personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension without pay shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee’s personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable laws. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Article 18 of the NCF&O Contract describes the grievance procedure available to bargaining unit members who allege a "misapplication or misinterpretation of the agreement." The described procedure consists of an "informal level" and four formal "levels," the final one being "arbitration before an impartial arbitrator, using the Federal Mediation and Conciliation Services." Pursuant to Section 4B. of Article 18, "if NCF&O decides to withdraw its support of an alleged grievance, the individual may continue to process the claim on his/her own, so long as all costs are borne by that individual"; however, according to Section 4E. of Article 18, "[a]grievance, once [actually] withdrawn, may not be reopened without the mutual written agreement between the [School District] and [the] NCF&O." "[L]eave [w]ithout [p]ay" is the subject of Article 25 of the NCF&O Contract, which provides as follows: SECTION 1. Personal Leave of Absence Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent. An employee granted an unpaid leave of absence shall be returned to his/her former classification if the leave is less than ninety (90) days, notwithstanding the layoff provisions contained in this agreement. An employee granted a leave of absence and who wishes to return before the leave period has expired, may submit a request to return to the principal/department head. An employee granted a leave of absence in excess of ninety (90) days will be permitted to return to work provided there is an opening in the same job classification in the work unit. If the former position is not available, the employee, upon written request, shall be listed as an eligible applicant for a period of six (6) months. Group Life and Hospitalization Insurance coverage may be continued for a period equal to the authorized leave of absence, provided full premium payments, including the Board's payment, are kept current by the employee. SECTION 2. Return from Leave Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal.[3] This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent.4 Section 2 of Article 35 of NCF&O Contract protects employees from "[h]arassment." It provides as follows: No employee shall be subjected to or be part of: Unwelcome sexual advances, requests for sexual favors, offensive, lewd or suggestive comments. Also includes the creation of a hostile, intimidating, or offensive work environment. Verbal or physical abuse is submitted to by an employee. An adverse decision is made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. Verbal or physical abuse. An adverse decision shall not be made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. There came a time when Respondent claimed, in a Level One grievance filed under the NCF&O Contract, that he was a victim, at the hands of Ms. Boone, of the "[h]arassment" proscribed by Section 2 of Article 35 of the contract. The grievance was filed (with the support of NCF&O) on or about April 8, 2004, several weeks following an incident in which Ms. Boone "yell[ed]" at Respondent for returning "a little bit late[]" from a delivery run. It contained the following "[g]rievance [s]tatement" and description of the "[r]elief [s]ought": Grievance Statement: (Include Date of Occurrence) Mr. Ellis fe[e]ls that he is working in a hostile work environment. He had meeting with the Dept. Head to express his feelings. On March 31, the employee was issued a written reprimand when there has never been any discipline for the employee. Relief Sought: The reprimand is withdrawn from all personnel files. All intimidation of the employee to cease immediately. Ms. Boone, on behalf of the School District, responded to the grievance by providing Respondent with the following written "disposition": After careful consideration of all available information, it has been determined that there has not been a violation, misapplication, or misinterpretation of the collective bargaining procedures. The grievance was not pursued beyond Level One. Since March 16, 2004, Respondent had not been reporting to work, notwithstanding that he had not received authorization to be absent. On or about April 5, 2004, Respondent submitted a request for leave of absence without pay for the period from April 5, 2004, to July 5, 2004. The type of leave without pay he requested was personal leave. By letter dated April 8, 2004, Mr. Baron advised Respondent that Respondent's request was being denied. In his letter, Mr. Baron wrote: You were absent without approved leave on April 5, 2004, April 6, 2004, and April 8, 2004. On Monday, April 5, 2004, you reported your intended absences and requested personal leave of absence starting April 5, 2004 through July 5, 2004. Pursuant to Article 25, Section 1, of the Agreement between The School District of Palm Beach County and National Conference of Firem[e]n & Oilers, "Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent." Your request for personal unpaid leave is denied. You are directed to return to work on Monday, April 12, 2004. Continued unapproved absences will result in further disciplinary action up to and including termination. Respondent did not return to work on April 12, 2004, as directed. The matter of Respondent's unauthorized absences was then "turn[ed] . . . over to [the School District's] personnel [office]" to "deal with." The personnel office decided to ask the School Board to terminate Respondent's employment for his having been absent without authorization. Before the School Board took any action, Respondent submitted another request for leave of absence without pay. The type of leave without pay he requested this time was sick leave. On the request form, Respondent indicated that he wanted the leave period to begin on April 16, 2004, "but there was no end date" written in anywhere on the form. Without an "end date," the form could not be processed. Sherry Kleinman, a School District analyst assigned to the personnel office (whose job duties include processing "all the leaves of absence for School [District] employees"), telephoned Respondent and "asked him what end date he wanted" her to place on the form for him. During their telephone conversation, Ms. Kleinman and Respondent "agreed upon" a May 17, 2004, "end date." Ms. Kleinman inserted this "end date" in the appropriate space on the form and then completed processing Respondent's leave request. Respondent was granted leave without pay for the period starting April 16, 2004, and ending May 17, 2004. Moreover, the personnel office "pulled" its recommendation that the School Board terminate Respondent for his having been absent without authorization. Respondent did not report to work at any time following the expiration of his authorized leave on May 17, 2004, nor did he seek an extension of this leave. There has been no showing made that there were extenuating circumstances present preventing Respondent's timely return to work; nor has it been shown that the issue of whether such extenuating circumstances existed has ever been presented to the Superintendent for determination. Personnel office staff attempted to reach Respondent by telephone to encourage him to seek an extension of the authorized leave that had expired. These efforts were unsuccessful. Upon being advised of the situation by Ms. Kleinman, NCF&O business agent Carolyn Killings, who had helped Respondent in filing his "[h]arassment" grievance, offered to try to contact Respondent, but she too was unable to "reach him." By letter dated June 14, 2004, Ernie Camerino, the assistant director of the personnel office, advised Respondent of the following: You were recently notified by your supervisor of your failure to return to work. As a result of such action, Personnel is currently processing your involuntary resignation from employment with the School District. Please be advised that I will recommend at the July 21, 2004 meeting of the School Board of Palm Beach County, Florida, your involuntary resignation. Subsequent to the July 21, 2004 Board meeting you will have fifteen (15) days to file an appeal under Section 120.[6]8, Florida Statutes. Unless a timely request for an administrative hearing (DOAH) is made within fifteen (15) days stated herein pursuant to Section 120.569 and 120.57, Florida Statutes the District will consider this matter closed. This action is taken in accordance with Section 1001.42 and 1001.51, Florida Statutes. Failure to timely request an administrative hearing shall waive all rights to request a DOAH hearing on such matters and shall be subject only to appeal rights under Section 120.[6]8, Florida Statutes. You have a choice of filing a grievance or requesting a hearing before the Division of Administrative Hearings (DOAH). Questions regarding the appeals process should be referred to the District's Legal Department. If you find this letter inconsistent with the action taken above, you may contact Mr. Camerino immediately at . . . to resolve this matter prior to School Board Action. By letter dated July 8, 2004, Respondent informed the School District's legal department that he was "requesting an appeal" of Mr. Camerino's "involuntary resignation" recommendation. On August 23, 2004, the same day the Superintendent filed his Petition for Involuntary Resignation recommending that the School Board terminate Respondent's employment, the School District referred Respondent's appeal to DOAH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order terminating Respondent's employment based on his failure to return to work following the expiration of his leave without pay on May 17, 2004. DONE AND ENTERED this 14th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of February, 2005.
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner was employed by Respondent beginning in 1985 and, at all times material hereto, was supervised by Dr. Frank A. Coliazzi. Petitioner had been made aware of the rules and policy of the Respondent in regard to unauthorized leave of absence. Specifically, Petitioner was counselled in this regard on March 26, 1986, by Dr. Frank A. Colliazzi for his unauthorized leave of absence on March 25, 1986. Petitioner knew, or should have known, that un-authorized leave of absences could result in disciplinary action or the loss of employment through abandonment. Prior to April 14, 1986, Petitioner had a history of unauthorized leave of absences. In fact, Petitioner was absent without authorized leave on April 9 & 11, 1986, after being counselled as late as March 26, 1986 in this regard. Petitioner was absent without authorized leave on April 14, 15 & 16, 1986. Petitioner appeared briefly at the work place on April 15, 1986 but did not go to work and left immediately when requested to work by Dr. Colliazzi, with a promise to return to work the next morning, April 16; 1986, at 8:00 a.m. The Petitioner did not request a leave of absence at this time and did not return to work on April 16, 1986 as promised. Respondent's certified letter of April 16, 1986, informing Petitioner that Respondent considered him to have abandoned his position because of his three (3) consecutive days of unauthorized leave was not received by Petitioner until April 24, 1986 due to Petitioner's failure to notify Respondent of his change of address. However, Petitioner was made aware of the letter and its contents by Maxine Fields on April 21, 1986. Petitioner's failure to return to work on April 17 & 18, 1986, lends support to Respondent's contention that Petitioner had abandoned his job since Petitioner was not aware of Respondent's position on his abandonment until April 21, 1986. At no time relevant to this proceeding was leave requested by Petitioner or granted by Respondent. Although Petitioner received notice of the hearings, he failed to appear at either one and present evidence in rebuttal to Respondent's position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Respondent in deeming the Petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. RESPECTFULLY ENTERED and SUBMITTED this 25th day of November, 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 25th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2604 The following constitutes my specific rulings pursuant to Section 120.59(1), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by Respondent: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 4. 4. Adopted in Finding of Fact 5 & 8. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 7. 7. Adopted in Finding of Fact 6 & 7. 8. Adopted in Finding of Fact 9. COPIES FURNISHED: Judy Waldman, Esquire General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 Barbara Wingo, Esquire Associate General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 James H. Foster 3216 Lancastor Lane Tampa, Florida 33619 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
Findings Of Fact Prior to February 25, 1986, the Petitioner, Tommie Miller, was employed by the Respondent, the Department of Health and Rehabilitative Services (HRS) at the Brevard Regional Juvenile Detention Center as a detention child care worker I. During the time relevant to this case, June and July, 1987, Ms. Miller's supervisor was Michele McKinley, detention center superintendent. On February 25, 1986, Ms. Miller injured her lower back, injuring two nerves. The injury was job connected, and Ms. Miller was eligible for and received workers compensation benefits. Ms. Miller was receiving workers compensation benefits during the period relevant to this case, July 10 through 27, 1987. With the exception of a brief time during the period of June 22 through 24, 1987, Ms. Miller was absent from work from February 1986 through August 10, 1987, and thereafter, for that matter. On June 24, 1987, she reinjured her back at work. During the months she was out of work, Ms. Miller was treated in various rehabilitation programs. In June and July, 1987, she was receiving treatment from Woods Rehabilitation Services, Inc., and the rehabilitation nurse assigned to her case was Joan Patterson. R. Ex. 5. Ms. Miller lives 25 miles from the detention center, and testified that in June and July of 1987, her back hurt too much to allow her to drive to work at the detention center. Ms. Miller had exhausted her sick leave by July 22, 1987. It is inferred that she was on approved leave without pay by July 22, 1987. This inference is based on the fact that nearly a year and a half had elapsed from the date of the injury, and normal sick, annual, and compensatory leave would have been exhausted. This inference is also based upon the rules concerning the proper way to characterize the absence of an employee due to a job connected disability discussed in the conclusions of law. It is inferred that on July 22, 1987, the period of approved leave without pay was indefinite. This inference is based on the findings of fact which follow and the lack of evidence of a definite period of approved leave without pay. On June 22, 1987, Dr. Stanley Kaplan provided a written statement excusing Ms. Miller from work. On June 29, 1987, Ms. Miller was again seen by Dr. Kaplan for evaluation. Dr. Kaplan performed the normal therapy he was then performing for Ms. Miller, but did not tell her she could return to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on June 29, 1987. On July 17, 1987, Ms. Miller visited Dr. Stanley Kaplan for rehabilitative treatment. Dr. Kaplan did not tell Ms. Miller at that time that she could go back to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on July 17, 1987. On July 22, 1987, Ms. McKinley wrote a certified letter to the Petitioner, Tommie Miller. R. Ex. I. The letter in its entirety stated: I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87. She further reported that you stated you didn't understand that you could return to work. In addition, we have had no further contact from you since 6/24/87. I am now going to have to require you to report back to work on 7/27/87, by 9:00 a.m. If you do not report back to work on this date or provide the appropriate medical documentation as to your absence, we will have to assume that you have abandoned your position with HRS. Thus, the letter of July 22, 1987, explicitly gave Ms. Miller two options: report to work at 9:00 a.m. on July 27, 1987, or "provide the appropriate medical documentation as to your absence." From the contents of the letter, it is concluded that when the letter was written, Ms. McKinley thought that Dr. Kaplan had released Ms. Miller to return to work on July 10, 1987. It is also concluded from the contents of the letter and from R. Ex. 5, which Ms. McKinley testified she had in her possession and was aware of when she wrote the July 22, 1987, letter, that Ms. McKinley was aware on July 22, 1987, that Ms. Patterson had said that Ms. Miller had said that she (Ms. Miller) did not understand that Dr. Kaplan had said she could return to work. On July 22, 1987, Ms. Miller was examined by Richard P. Newman, M.D. On July 24, 1987, Ms. Miller received the letter of July 22, 1987. As soon as she received the letter, Ms. Miller called Ms. McKinley on the telephone. Ms. Miller told Ms. McKinley that her current medical problem was an inability to drive to work, but that she could work if she was able to travel to work. Ms. McKinley told Ms. Miller that she had not received a written report from a physician concerning Ms. Miller's condition since June 24, 1987. Ms. McKinley told Ms. Miller that she (Ms. McKinley) still needed medical documentation, and that she could not authorize leave based on her oral report without medical documentation. Ms. Miller then told Ms. McKinley that Ms. Patterson at the Woods Rehabilitation Services was supposed to send the doctor's report to Ms. McKinley. During the telephone call, Ms. McKinley did not ask her (Ms. Miller) to personally deliver the doctor's report, and did not tell Ms. Miller that reliance upon Ms. Patterson was inappropriate. Moreover, Ms. McKinley did not warn Ms. Miller that if Ms. Patterson fi1ed to deliver the report by July 27, 1987, that Ms. Miller would automatically forfeit her job. At the time of the phone call from Ms. Miller, Ms. McKinley was in possession of R. Ex. 5. The top of page two of that document advised Ms. McKinley that Ms. Miller was scheduled for an evaluation by Dr. Newman on July 22, 1987. In the fourth paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Ms. Miller would attend the appointment with Dr. Newman. In the seventh paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Nurse Patterson felt that Dr. Newman's evaluation was important to an assessment of the current status of Ms. Miller's medical condition. These findings are based upon what is in fact stated in R. Ex. 5 and known to Ms. McKinley as what Ms. Patterson had written. No finding is made as to whether what is stated in R. Ex. 5 is true. It is concluded that during the telephone conversation with Ms. Miller on July 24, 1987, Ms. McKinley knew that Ms. Miller was to have been evaluated by Dr. Newman on July 22, 1987. At the time of the phone call on June 24, 1987, Ms. McKinley did not ask Ms. Miller to tell her what Dr. Newman had determined concerning Ms. Miller's medical condition, and did not ask Ms. Miller about Dr. Newman's evaluation two days earlier. As a result, during the July 24, 1987, telephone conversation, inexplicably neither Ms. McKinley nor Ms. Miller mentioned anything about Dr. Newman's evaluation on July 22, 1987. R. Ex. 2A is the report of Dr. Newman with respect to the visit of July 22, 1987. The report indicates on its face that Woods Rehab Services and Ms. Tommie Miller are listed as recipients of the "cc." The report of Dr. Newman of July 22, 1987, R. Ex. 2A, states in part: At this time, my feeling would be that the drive to and from Titusville is causing her more harm than good. Since she works for the state, it would be in the best interest of all parties concerned to move her to a position in the Rockledge area because she will be able to commute a very short drive and would be quite capable of performing this type of sedentary work. On July 24, 1987, Ms. Miller called Dr. Newman to get another written report, and asked Dr. Newman to send that report to Ms. Patterson at Woods Rehabilitation Center. R. Ex. 2B is that report. The report of July 24, 1987, shows that Woods Rehabilitation Services, Inc., but not Ms. Miller, was the recipient of a "cc." The report of July 24, 1987, R. Ex. 2A states in part: It is not the act of driving itself, but it is the riding in the car that is bothering her back and I do not think that she should be having to travel by car 25 miles in either direction to work when she could be doing a similar job virtually around the corner from her house. It is concluded that the report of Dr. Newman, in written form, supported Ms. Miller's oral statement to Ms. McKinley that she was physically unable to drive to the detention center due to the distance. These findings of fact are based upon what in fact is printed on the face of the reports, and is not a finding that the statements contained in the reports are true. Ms. Patterson told Ms. Miller that she would send the report to Ms. McKinley. Ms. Patterson told Ms. Miller that she did communicate with HRS. No finding is made as to the truth of Ms. Patterson's statement, but only that Ms. Miller in fact heard Ms. Patterson make this statement to her. Ms. Miller thought Ms. Patterson would and did send the medical report of July 22, 1987, to Ms. McKinley. Ms. Patterson did not send Dr. Newman's medical report to Ms. McKinley. There was a prior pattern of dealing between the parties such that Ms. Patterson, with reasonable frequency, though not routinely, communicated to Ms. McKinley concerning the current medical status of Ms. Miller with respect to her ability to resume her job with HRS. This finding of fact is based upon the testimony of Ms. Miller, who stated that she relied upon Ms. Patterson to keep Ms. McKinley informed, and the testimony of Ms. Miller that on July 24, 1987, she told Ms. McKinley by telephone that Ms. Patterson would send the medical documentation. It is also based upon the testimony of Ms. McKinley, who testified that Ms. Patterson did, from time to time discuss with her Ms. Miller's medical condition and job alternatives. But most important, this finding is based on the letter of July 22, 1987, itself. The first sentence of that letter stated: "I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87." It is noted that R. Ex. 5, which Ms. McKinley testified was the only information she had on July 22, 1987, was an extensive report prepared by Nurse Patterson, and shows Michele McKinley in the "cc" list, from which it is inferred that Ms. Patterson routinely sent these medical evaluations to Ms. McKinley. In the year between August, 1986, and July, 1987, there is no evidence that Ms. Miller had failed to provide HRS with medical documentation concerning her injury as may have been required by HRS, or that HRS had not been satisfied with the reports received from Nurse Patterson and her predecessors. In particular, there is no evidence that during this twelve month period HRS had discussed with Ms. Miller any problem of receipt of medical documentation, or had occasion to warn her that it was her personal responsibility to provide medical documentation, and that her failure to do so would result in loss of her job. Such a warning, it is inferred, would have been appropriate if Nurse Patterson had failed to send medical documentation that had been previously demanded by HRS. In short, during the period from July, 1986, to July, 1987, it must be concluded that whatever system of medical documentation was then required by HRS, if any, was complied with satisfactorily. On July 28, 1986, Ms. Miller was warned by her supervisor that she had a personal responsibility to keep HRS informed concerning her medical condition. The warning on this date was prompted by the fact that HRS was then not receiving medical documentation that it needed. The relevance of this warning with respect to the period of June and July, 1987, is diminished for several reasons. First, this warning occurred a year before, and there is no evidence of any failure in the intervening 12 months by Ms. Miller to satisfy HRS's needs for medical documentation. Further, the July, 1986, incident occurred because Ms. Miller then did not have a rehabilitation nurse assigned to her case, and thus had no medical representative to send medical information to HRS for her. But more important, as discussed in the preceding paragraph, when Nurse Patterson and her predecessors were assigned to Ms. Miller, Ms. Miller relied upon them to send medical information. The system apparently worked, since there is no evidence of a dissatisfaction by HRS with medical documentation after July, 1986, until the letter of July 22, 1987. The medical documentation was still not received by Ms. McKinley on August 10, 1987. Ms. Miller did not report to work in the period from July 22, 1987, to August 10, 1987. On August 10, 1987, HRS by letter notified Ms. Miller that HRS concluded that Ms. Miller had abandoned her position. Ms. Miller did not learn that Ms. McKinley had not received the medical documentation until she received the letter of August 10, 1987. On August 18, 1987, Ms. Miller requested a formal administrative hearing concerning the conclusion that she had abandoned her position.
Recommendation It is therefore recommended that the Department of Administration enter its final order finding that the Petitioner, Tommie Miller, did not abandon her position with the Department of Health and Rehabilitative Services by being absent from her job for three consecutive workdays without authorized leave. DONE and RECOMMENDED this 17th day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988. APPENDIX To Recommended Order in Case No. 87-4136 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used designate the unnumbered paragraphs used by the Petitioner, in sequence. Findings of fact proposed by the Petitioner: Fourth sentence, there is no transcript, and the Hearing Officer's notes do not record the testimony that the medical excuse "indicated that the estimated Date of Return to Duty as unknown." The Hearing Officer has no independent memory of such testimony sufficient to conclude that this proposed finding of fact is true. The same is true with respect to the sentence: "Ms. Miller advised McKinley that she had been to see Dr. Richard P. Newman, M.D. on July 22, 1987." If the record reflected that Ms. Miller so testified, the Hearing Officer would make this finding of fact, since there was no reason to disbelieve Ms. Miller's testimony, and Ms. McKinley testified that she could not remember. Ms. Miller's testimony, as well as Ms. McKinley's testimony, appeared to be honest and straightforward, testifying to the truth both remembered at the time of testifying. The last sentence is not relevant. The first and third sentences are rejected since no one from Woods Rehabilitation Services testified. There is no evidence in the record that Ms. Patterson in writing told Ms. Miller that she advised Ms. McKinley of Ms. Miller's continued disability, and thus that portion of the sixth sentence is rejected. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Linoria Anthony AFSCME Council 79 345 South Magnolia Drive Suite F-21 Tallahassee, Florida 32301 James A. Sawyer, Jr., Esquire District VII Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida 32801 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether or not Petitioner, pursuant to Rule 6C-770 F.A.C., abandoned her position as a Secretary Specialist, thereby resigning from Florida State University by being absent without leave for three consecutive days.
Findings Of Fact At all times material, Petitioner, Teresa Loewy, was employed as a Secretary Specialist in the Department of Educational Leadership at Florida State University (FSU). On October 22, 1989, Petitioner Loewy reported that she had suffered a head injury as a result of an on-the-job accident. That same day, she was seen at Tallahassee Memorial Regional Medical Center and released. On October 23, 1987, FSU placed Petitioner on administrative leave for 40 hours. Contact was made by Petitioner and her husband, Mr. Samuel Loewy, with Dr. David Leslie, Department Chairman, with Nina Mingledorff, Department Staff Assistant and Petitioner's immediate supervisor, and with Motney Gray, FSU Workers' Compensation Supervisor. The Loewys were informed that a worker's compensation report had been completed and forwarded by the Department to Ms. Gray. This is the first formal step in an employer acknowledging that workers' compensation or medical benefits may be due a worker pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law." By letter dated November 3, mailed November 5, and received by Petitioner on November 10, 1987, Chairman Leslie informed Petitioner in pertinent part as follows: As you may be aware, you have been on disability leave for a 40 hour work period. Beyond that limit, this office will not certify any additional leave for you unless we receive medical proof that you are unable to return to work. Although you may apply for workers' compensation, I believe that similar proof will be required by that office. Absent any further communication from you and absent proof to the contrary, we assume that you are capable of returning to work and have elected not to do so (R-3). By letter of November 5, 1987, (R-9) Motney Gray notified Petitioner that Ms. Gray's communications with Joe D. Rawlings, M.D. had convinced Ms. Gray that Petitioner was not still impaired and was able to work and that Ms. Gray was terminating workers' compensation medical benefits and Petitioner's disability leave as of that date. By letter dated November 12 and received November 13, 1987, Robert L. Lathrop, Dean of the College, informed Petitioner as follows: Based on Motney Gray's letter of November 5, to you, we are hereby notifying you as of 8:00 a.m. November 6, you have been on unauthorized leave. Because of your unauthorized leave of absence, I am writing this letter to determine your intentions concerning continued employment at Florida State University. You must report for work immediately, or provide your supervisor, Mrs. Nina Mingledorff, with appropriate medical certification by 4:30 p.m., Monday, November 16, or it will be assumed you have voluntarily resigned due to abandonment of your position. (R-1) In response, on November 16, 1987, Mr. Loewy, on behalf of his wife, delivered to the Department a handwritten note from Dr. Rawlings, (R-2) which read: To whom it may concern: Mrs. Teresa Loewy is still under my care for headaches dating back to her injury on 10-22-87. At that point in time, Dr. Rawlings could be accurately characterized as Petitioner's primary treating physician pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law". Copies of this letter were seen by Nina Mingledorff and by Annette Roberts, FSU Employee Labor Relations Coordinator. On November 17, 1987, Petitioner and Mr. Loewy, together with another couple, visited Petitioner's workplace. Their purpose was to have Petitioner physically on the employment premises to demonstrate that Petitioner was unable to work due to her injury. At that time, the Loewy faction spoke with Annette Roberts, with John Goldinger, Assistant Personnel Director, and with Dean Lathrop. Initially, Petitioner was given a termination letter prepared for the Dean's signature, based upon Petitioner's three consecutive days' absence without prior authorization, which letter was as yet unsigned. However, as a result of the Loewy faction's face-to-face interview with Dean Lathrop, a new memorandum was prepared and actually signed by the Dean. This second communication was addressed to John Goldinger and read as follows: I am hereby authorizing leave of absence for Ms. Teresa A. Loewy beginning November 16, 1987, at 3:00 p.m. and ending no later than 10:00 a.m. on November 20, 1987. The purpose of this leave is to provide time for Mrs. Loewy to secure medical certification that she is unable to drive herself to work. (R-4) The effect of this memorandum, signed by Dean Lathrop and handed to Petitioner, was to supersede his other unsigned/unconsummated correspondence attempting to terminate her under the three days' absence rule. On November 20, 1987, Mr. Loewy obtained a two page letter from Dr. Rawlings (R-6) dated the preceding day. That letter, which Mr. Loewy was unable to pick up at Dr. Rawlings' office in Thomasville, Georgia, until shortly after the 10:00 a.m. November 20 deadline established by Dean Lathrop's November 17 signed memorandum, may be summarized as follows: Dr. Florek, a board certified neurologist had diagnosed Petitioner as having post-concussive syndrome on October 29, 1987. Sometime between November 3 and 6, Dr. Bridges, an opthomologist had diagnosed her eye examination as "essentially within normal limits". With the concurrence of FSU's Motney Gray, Petitioner was scheduled for an MMPI (a psychological assessment), the results of which had not yet been received on the date of Dr. Rawlings' letter, November 19, 1987. She was also scheduled for an MRI (magnetic resonance imaging, a type of x-ray particularly helpful in determining head and soft tissue injuries) which was scheduled for November 24, 1987. Dr. Rawlings confirmed that the Petitioner continued to come to him with the subjective complaints of headaches, blurred vision, and diplopia. The overall tone of his letter is that Dr. Rawlings thought Petitioner could work as of November 19, 1987, although he did not specifically say so. His rather vague summation was, "I have relayed to Mrs. Loewy [on] a number of occasions that I feel this problem will be self limited and that all attempts will be made on my part to not give her any type medication which might be habit forming." (R-6) On his wife's behalf, on November 20, 1987, at approximately 11:30 a.m., Mr. Loewy presented Dr. Rawlings' November 19, 1987 letter in a sealed envelope to Evelyn Ashley, Dean Lathrop's Administrative Assistant, and also gave a copy of it to Nina Mingledorff. Dean Lathrop was not in the workplace that day. During the time he was at Petitioner's workplace on November 20, 1987, Mrs. Ashley presented Mr. Loewy with a request form for a leave of absence without pay. She and others emphasized to him that the completed form must specify a date the Petitioner could return to work, a fact clearly in contention at that point. He was requested to have Petitioner complete the form and return it. He was not told how long Mrs. Loewy would have in which to complete and return the form. From this point forward the testimony is in sharp conflict. It is debatable whether Mr. Loewy was concerned about the effect such a "form" request might have upon his wife's job status or her incipient workers' compensation claim, whether he merely felt she was entitled to leave with pay, or whether he was ever told he could sign the form for his wife. It is clear, however, that Mr. Loewy refused to complete the form on Petitioner's behalf and also refused to take it to her unless he could add a notation to the form that her job would not be jeopardized by requesting such voluntary leave. Having assessed the candor and demeanor of the respective witnesses and the internal and external credibility and consistency or lack thereof of their respective versions of the events and conversations of November 20, 1987, it is found that FSU personnel refused to permit any additions or deletions to the form. They also refused to permit Mr. Loewy to submit a separate explanatory note with regard to the Loewys' position on the subject, even though it was John Goldinger's view at the time of formal hearing that it had always been normal FSU procedure to permit attachments and addendums to other requests for leave without pay. The standard forms requesting leave without pay which were presented by FSU employees to Mr. Loewy therefore were never given to Petitioner, completed by her, or submitted by the Petitioner to the University, although Mr. Loewy was repeatedly told that Petitioner's job would not be held for her unless the forms were filled out and submitted. Dr. Rawlings' November 19 letter (R-6) was not transmitted by his subordinates to Dean Lathrop at or near the time Mr. Loewy submitted it to them. Neither did Chairman Leslie contemporaneously see Exhibit R-6. According to Dr. Leslie, no one below his administrative level had the authority to determine the sufficiency of that "excuse" and the appropriate person to have decided that issue would have been Dean Lathrop. Annette Roberts and John Goldinger agreed that leave requests often went through Dean Lathrop. Although the Dean might not vary duly promulgated rules, the evidence as a whole, including Dean Lathrop's prior informal extension of Petitioner's leave, supports Annette Roberts' assertion that Dean Lathrop had the discretion to either effect the abandonment or increase the grace/leave period he had previously granted Petitioner. Thereafter, Petitioner never did return to work. On Wednesday, November 25, 1987, Dean Lathrop, unaware of the contents of the November 19 letter from Dr. Rawlings, and therefore never having decided on its sufficiency or lack thereof, prepared the following termination letter to Petitioner: You have been absent without leave of absence for 3 or more consecutive workdays . . . [Rule 6C-5.770(2)(a) is quoted] . . . Based on the above stated rule, you are deemed to have resigned from your position. . . effective this date, November 25, 1987 at 10:00 a.m. (R-10) Bracketed material and emphasis provided] It is clear from the foregoing, that regardless of Petitioner's not having submitted any leave without pay request forms, and regardless of Petitioner's nebulous status as to leave after her initial 40 hours disability leave (See Findings of Fact 4-9 supra), Dean Lathrop counted toward implementation of the three days' abandonment rule only the three consecutive "working days" (presumably 24 work hours) elapsing after his own ultimatum time and date of 10:00 a.m., November 20. The Dean's reasoning, as explained by him at formal hearing, was that the Petitioner had not requested a leave of absence. Evelyn Ashley stated that she had told Dean Lathrop both that the doctor's letter (R-6) had been submitted and also that the Dean could do nothing about processing leave for Mrs. Loewy because R-6 had to be attached to a "request for leave form" and that "form" had not been submitted by the Petitioner. Dean Lathrop testified that if he had seen R-6 and still had any doubts of its sufficiency, he probably would have approved leave on the same basis as he had on November 17, at least until he had the opportunity to consult medical personnel further. It was never determined by FSU personnel prior to formal hearing whether the December 19 communication from Dr. Rawlings (R-6) was sufficient under the terms of the Dean's November 17 memorandum granting further leave up to 10:00 a.m., November 20, 1987. As of Friday, November 20, 1987, Petitioner had only 1.7 hours annual leave and 3.5 hours sick leave status to draw upon. After her separation date, Petitioner was paid for 1.7 hours of accrued annual leave; she was not paid for any accumulated sick leave. Subsequently, Petitioner and FSU became embroiled in workers' compensation litigation and entered into a "Stipulation and Joint Petition" which was adopted and approved by an Order of the Deputy Commissioner dated August 8, 1988. (P-3) 1/ Admitted facts found therefrom which are relevant, material, and significant to the instant cause and which are not cumulative to any of the facts found supra, are as follows: . . . She [Petitioner] was scheduled for an MMPI which was done on November 20, 1987. An MRI scan of the brain was done November 23, 1987 and was interpreted as normal. . . . Dr. Bridges examined the Employee [Petitioner herein] on 11/3/87 and found irregular visual fields, more constricted in the right eye, but otherwise normal examination. The employee was then seen by Dr. Thomas J. Perkins who diagnosed occipital syndrome on the right side and recommended treatment by Dr. Seay. . . . The employer/carrier and employee/claimant stipulate and agree that the maximum medical improvement date is April 25, 1988, pursuant to the medical report of Dr. James T. Willis. [Bracketted material provided] It is clear on the record that Motney Gray, FSU's Coordinator for Insurance Risk, informed Dr. Rawlings on several occasions that it was "possible" that workers' compensation would pay for another employee to transport Petitioner from her home in Thomasville, Georgia, to work at FSU in Tallahassee, Florida, but it is not clear that this offer was ever made any more concrete than as a "possibility", and the offer apparently was never made directly to the Petitioner by any representative of FSU. It is clear that, at some point, Dr. Rawlings conveyed this offer to the Petitioner, but it is not clear on the record that this information ever reached Petitioner at any time prior to November 25, 1987 and simultaneously with a period she also was not taking a drug prescribed by some physician. Petitioner was treated, not just by Dr. Rawlings, but by Doctors Florek, Bridges, Seay, Willis, Hogan, and Perkins. At some point in time, Dr. Willis, a chiropractic physician, became Petitioner's primary treating physician. Moreover, it is clear that Dean Lathrop, who was Petitioner's only superior with authority to determine the sufficiency of the letter of certification (R-6), was concerned about Petitioner's ability or inability to drive herself, not whether someone else could or would drive her to work. In addition to the oral communications to Mr. Loewy on November 20, FSU had directly advised Petitioner concerning the general nature of its abandonment rule and of FSU's requirements for prior approval of all leave requests, first by circulating standard informational documents to all employees, and secondly, by its various letters to Petitioner which are described supra. The parties stipulated that in the event abandonment was not proven, any back wages awarded to Petitioner should be subject to all appropriate class pay increases, and should be reduced by the workers' compensation and unemployment compensation already paid to Petitioner, and should be further reduced by any income earned by her.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered: Finding Petitioner has not abandoned her position. Reinstating Petitioner to her position. Ordering payment of backpay and emoluments from November 25, 1987, less unemployment and workers compensation paid by Respondent and less mitigation earnings of Petitioner, pursuant to the parties' stipulation. Denying any attorney's fees. DONE and ENTERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. 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 5th day of October, 1989.
The Issue The issues in this case are whether Respondent engaged in an unlawful employment practice against Petitioner on the basis of disability, and whether Respondent retaliated against Petitioner in violation of the Civil Rights Act.
Findings Of Fact SLCSO is a law enforcement agency in Port St. Lucie, Florida. On April 15, 1996, Petitioner began employment with SLCSO as a corrections officer. She worked as a detention deputy overseeing inmates and was assigned to booking most of her career. Petitioner was good at her job and typically got above average on her evaluations related to her work performance. She also got along with her colleagues. After 2005, when Wesley had a conflict with Lieutenant Stephanie Lyons ("Lt. Lyons"), Petitioner began to believe that she was working in a hostile work environment and that her colleagues were out to get her at the direction of Lt. Lyons. Wesley reported and filed complaints throughout her employment whenever she believed improper behavior occurred. She reported multiple incidents, including ones where she felt employees made statements about her that were untrue. As a result, numerous investigations were conducted by her supervisors and SLCSO Internal Affairs, to which the majority were concluded unfounded. Many of the incidents Wesley reported were unsettling to her and ultimately made her depressed with anxiety, have panic attacks, and elevated her blood pressure. Lt. Lyons, Lt. Daniel O'Brien ("Lt. O'Brien"), Sergeant Jeffrey Jackson ("Sgt. Jackson"), Sgt. James Mullins ("Sgt. Mullins"), and Sgt. Johnny Henry ("Sgt. Henry") were some of Petitioner's supervisors while employed at SLCSO. One incident that has been extremely troubling to Wesley is her observation of Sgt. Jackson punching a pregnant inmate in the stomach. The incident is so upsetting to Wesley that even though she reported the incident when it occurred, she continues to be upset by the incident and continues to relive it, which distresses her. During her employment, Wesley also lost her mom and brother in the same year, 2011. The losses took an added toll on her and caused more emotional difficulties. Another major personal event that stressed Wesley was that she found out the deputy that she thought she had been in a 15-year monogamous relationship with was having an affair with another deputy on Wesley's shift. Those working conditions caused Wesley even more emotional harm. At some point, Wesley had an emotional breakdown, could not get out of bed, and even thought she no longer wanted to live. Eventually, Wesley's illnesses became debilitating, and her high blood pressure was unstable. Wesley started missing work because of her illnesses. She physically was unable to work. On June 20, 2012, after Wesley was absent five times, she was counseled for abuse of sick leave benefits in violation of SLCSO Policy 5.1.33. During the counseling, Wesley was told she "needs to achieve and maintain an acceptable level of sick time usage to improve [her] below average status. Deputy Wesley will receive a below standard on her evaluation for sick time usage." Wesley first applied for the Family Medical Leave Act ("FMLA") on September 25, 2012, but the process was not completed. On February 25, 2014, Wesley was issued a reprimand for abuse of sick leave in violation of SLCSO Policy 5.1.33 after she was absent another five days in 12 months. She was warned that "any further absences will result in continued progressive discipline." Wesley did not lose pay when she was reprimanded. On or about August 21, 2014, Wesley submitted an Intermittent Family Medical Leave Act request for her own "Serious Health Condition" to the SLCSO Human Resources Office ("Human Resources"). Wesley's application was incomplete. On October 8, 2014, Petitioner submitted the outstanding medical certification needed for the application submitted on August 21, 2014. Human Resource Manager Lori Pereira ("Pereira") denied the FMLA request on October 13, 2014, because the medical certification was submitted untimely, 52 days from the date of Petitioner's last absence. On October 22, 2014, Wesley requested reconsideration of her FMLA application, and Human Resources denied it on October 27, 2014. On March 20, 2015, Wesley requested FMLA leave again. In her application, Wesley provided a medical certification filled out by her cardiologist, Dr. Abdul Shadani ("Dr. Shadani"), which stated the patient will be absent from work for treatment "2-6 per year," and the underlying medical condition is systemic arterial hypertension ("hypertension"). "N/A" was the response Dr. Shadani supplied on the medical certification for probable duration of patient's incapacity. The hours/week section was marked intermittent. The certification box was also checked "No" after the question, "Will it be necessary for the employee to work intermittently or to work less than a full schedule as a result of the conditions?" On April 1, 2015, Human Resources approved Wesley's request for Intermittent FMLA leave due to medical reasons. The approval cycle was from August 21, 2014, through August 20, 2015. Pereira backdated Wesley's leave to August 21, 2014, the date Dr. Shadani identified as the beginning of Wesley's medical condition. The backdating converted Wesley's unexcused absences to excused absences, and she avoided additional disciplinary action for unexcused absences. SLCSO policy required that when an employee is on Intermittent FMLA leave, the employee has to call out as needed and report which type of leave is being used. The policy for taking sick leave required that employees call in two hours prior to the shift and notify your supervisor. Wesley felt it was unnecessary to have to call in so frequently. In order to maintain FMLA leave, employees are required to get renewed medical certifications for the cycles. Human Resources notified Wesley when she needed to provide a physician recertification to continue her FMLA leave. When Wesley had to get recertifications, she felt like it was too frequently and that she was being harassed. Obtaining recertifications required that Wesley pay co-pays, which she believed were very expensive since she was not working. Wesley also felt like she was being punished for using the FMLA leave benefit. During the August 21, 2014, to August 20, 2015, FMLA leave cycle, Wesley was absent approximately 444 hours. Pereira discovered Wesley's high leave rate, 444 hours, and noticed that it did not coincide with the projected two to six absences a year on the medical certification. Pereira conferred with her supervisor, Lt. Sheeler, and they decided to verify with Dr. Shadani whether the 444 hours were absences related to Wesley's underlying medical condition to which Wesley had FMLA leave approval. On August 31, 2015, Pereira wrote Dr. Shadani a letter inquiring about the 444 hours Wesley had been absent. By facsimile dated September 4, 2015, Dr. Shadani responded to Pereira's request and confirmed that the amount of absences listed in the medical certification was correct without further explanation or reference to Wesley's hypertension. On September 9, 2015, Human Resources approved Wesley's Intermittent FMLA request for the August 21, 2015, through August 20, 2016, cycle for Petitioner's own serious health condition. It was backdated to cover the dates Wesley missed back to August 21, 2015, even though the recertification was not completed until near the end of the covered FMLA period. While working at SLCSO, Wesley sought mental health counseling to help deal with her feelings about the workplace. She wanted to continue working for SLCSO and perform successfully. Human Resources decided they needed a better understanding of Wesley's condition with the extensive time she had been absent contrary to Dr. Shadani's absence projection. Pereira and Lt. Sheeler decided to request a second opinion since no detailed information was provided from Dr. Shadani. Pereira contacted Dr. Joseph Gage ("Dr. Gage"), a cardiologist and requested that he provide a second opinion. Dr. Gage was asked to review Wesley's job description and evaluate if her 444 hours of absences were reasonable for her medical condition, provide the reasoning for the number of absences from work for her medical condition, and determine if Wesley was capable of performing her job functions. SLCSO also requested that they be invoiced for the co-pay for Wesley's visit to Dr. Gage. On or about September 29, 2015, Pereira spoke with Wesley and told her she needed to go get a second opinion and that SLCSO was choosing a cardiologist, Dr. Gage, for the mandatory second opinion. That same day, Wesley received a call from Stuart Cardiology that she needed to report for a second opinion. SLCSO set up the appointment for Wesley. Wesley felt that SLCSO's making her report for a second opinion was harassment after her doctor, Dr. Shadani, had already responded to the Human Resources' request. Wesley emailed Pereira and told her "I am starting to feel punished for being on FMLA." Wesley also emailed Pereira and asked for the "specific reason(s) for your request for a second opinion." On or about October 2, 2015, Pereira responded to Wesley by email and stated: As I mentioned in our phone call a few moments ago, since Dr. Shadani's medical certification states that you would be absent for treatment for your medical condition for 2-6 times per year and due to the fact that you missed 444 hours within the past year, we are requiring this second opinion with our choice of cardiologist, Dr. Gage. On October 5, 2015, Dr. Gage evaluated Wesley. On October 9, 2015, Dr. Gage provided Human Resources his results of Wesley's evaluation. Dr. Gage was not able to confirm if the absences were from Wesley's hypertension because he did not have her blood pressure measurements during the absent dates. However, Dr. Gage was concerned about Wesley's blood pressure level and instructed Wesley not to return to work until the hypertension was more regulated. Dr. Gage also recommended Wesley expedite a visit to her cardiologist, Dr. Shadani, before being released. Wesley was released to return to work by Dr. Shadani on October 6, 2015. However, she did not provide her return to work release to Human Resources, contrary to SLCSO policy. Instead, Wesley provided the doctor's note to her supervisors. SLCSO policy requires medical clearance be provided to Human Resources if a deputy has missed more than 40 hours of consecutive work. On October 20, 2015, Kimberly Briglia ("Briglia"), the then human resources manager that replaced Pereira, called and told Wesley that a physician medical clearance had to be provided to Human Resources for her to return to work. Briglia's call was followed up by an email, and Wesley felt harassed, which she reported. On October 23, 2015, Lt. Sheeler reminded Wesley by memo that she had been sent an email by Human Resources on October 19, 2015, requesting a fitness for duty evaluation be provided by her physician. The memo informed Wesley that it was a "direct order" that she provide a fitness for duty report by November 2, 2015. Human Resources had sent previous correspondences to Wesley by certified mail that were returned unclaimed. SLCSO's practice was to have documents personally served by Civil Unit deputies when certified mail was unclaimed. Since Wesley had not been claiming her certified mail, Briglia had the SLCSO's Civil Unit personally serve Wesley at her residence with Lt. Sheeler's fitness for duty report memo dated October 23, 2015, to ensure Wesley received it because of the November 2, 2015, impending deadline. Wesley believed the personal service was harassment, and having to go to another doctor for a fitness of duty clearance was also harassment. On October 30, 2015, Wesley provided the fitness for duty report to Briglia and Lt. Sheeler. On October 31, 2015, Wesley was released to full duty without restrictions. On January 5, 2016, Human Resource Specialist Caitlyn Tighe requested Wesley provide a medical recertification to continue her FMLA leave. On January 22, 2016, Wesley provided Human Resources a FMLA medical certification signed by Dr. Shadani even though she felt it was harassing when SLCSO requested such documentation. On March 7, 2016, Wesley requested a retroactive pay increase because she believed that a deputy had received a similar pay increase and that she deserved the same. Wesley continued to believe that her supervisors were harassing her. On or about March 24, 2016, Wesley reported to Captain William Lawhorn ("Capt. Lawhorn") that she had been mistreated by Lt. Lyons yet again, as she had been doing since 2005. Wesley complained of the following problems with Lt. Lyons: Lt. Lyons assigned Sgt. Jackson over Wesley because he was "someone who feeds off of [Lt. Lyons]." Lt. Lyons tried to discipline Wesley while she was applying for FMLA leave. Lt. Lyons directed Sgt. Tom Siegart ("Sgt. Siegart") to call Wesley to let her know that she would need a doctor's note to return to work if she was out another day because she was on her third consecutive sick day. The "needs improvement" on Wesley's performance evaluation was only the rating because Lt. Lyons directed Sgt. Siegart to lower it. Lt. Lyons asked the deputies over radio communications had they seen Wesley who was late for roll call. Wesley believed Lt. Lyons was trying to embarrass her by calling her over the radio and not looking for her when she came in late. On April 19, 2016, Director of Finance Toby Long denied Wesley's request for a pay increase and explained that in 2007, Wesley had been provided an increase that corrected the discrepancy in her pay grade. He also informed Wesley that she had been paid properly since the 2007 increase. On April 22, 2016, Capt. Lawhorn had a meeting with Wesley and Lt. Lyons to discuss the March 24, 2016, complaint. Lt. Lyons agreed not to address Wesley publicly on the radio and talk with her privately going forward. Wesley declined the transfer Capt. Lawhorn offered, and Wesley and Lt. Lyons agreed they could work together. Capt. Lawhorn found no misconduct for any of the five complaints Wesley made on March 24, 2016. He found that the assignment of Sgt. Jackson was an arrangement based on need. The corrective action was moot because it was retracted when it no longer applied since Wesley's FMLA leave was backdated. He also determined that Lt. Lyons frequently used the radio to communicate all issues to deputies and was not singling Wesley out. Next, Capt. Lawhorn decided it was common practice to have a deputy call to check on another deputy about leave and to determine how to plan the work schedule. He also concluded Lt. Lyons used proper discretion when lowering Wesley's rating to "needs improvement," because Wesley had a zero sick leave balance and was tardy to work. Lastly, Wesley had been late at roll call; so, it was appropriate to look for her. Soon after the meeting, Wesley complained to Capt. Lawhorn that Lt. Lyons had discussed the meeting with Lt. Lyons' friend, Deputy Denetta Johnson ("Dep. Johnson"), and Dep. Johnson glared at her. Capt. Lawhorn followed up the complaint by investigating. He met with Dep. Johnson and found out that Lt. Lyons had not discussed the meeting with her. On May 27, 2016, Wesley provided SLCSO a Certification of Health Care Provider for Employee's Serious Health Condition signed by Dr. Shadani to continue her FMLA leave. In May 2016, Wesley's Intermittent FMLA was approved after she provided the FMLA medical recertification to Human Resources. In May 2016, Capt. Lawhorn tried to assist Wesley and found himself compiling a history of Wesley's career, including ten years of complaints against Lt. Lyons and other supervisors, reviewing her discipline and attendance history, medical condition, FMLA leave, and injuries. He evaluated Wesley's complaint that Lt. Lyons and the other supervisors were causing her undue stress and that she was being treated differently. Capt. Lawhorn discovered that Wesley had ten corrective actions for her whole tenure with the sheriff's office, which were related to neglect on-duty charges or sick leave abuse. Her record confirmed approved Intermittent FMLA leave for a personal, serious medical condition. Capt. Lawhorn's review found that Wesley's work history pattern of declining attendance, including periods without a full paycheck, started in 2013 and included: 2013, missed two full paychecks; 2014, missed one full paycheck; 2015, missed ten full paychecks; and 2016, missed four out of nine checks (YTD). Capt. Lawhorn addressed the possibility of Wesley qualifying for workers' compensation benefits because of her complaints about workplace stress, anxiety, and interactions with Lt. Lyons. Capt. Lawhorn addressed the issues in a memo to Major Tighe dated May 16, 2016. However, it was determined that Wesley did not qualify for workers' compensation benefits. By July 2016, Wesley's FMLA leave was running out. Human Resources Clerk JoLeah Rake prepared and sent a letter to Wesley to notify her that the FMLA leave exhausted July 26, 2016. The letter was returned unclaimed. Briglia determined that notifying Wesley that her leave was exhausted was an urgent matter and that she requested personal service to Wesley's residence by the SLCSO Civil Unit to ensure Wesley received the notice. On or about August 3, 2016, Wesley provided a return to work note to Briglia from Dr. Denise Punger ("Dr. Punger"), stating that Wesley could return to work on August 5, 2016. Wesley had just missed five days of work. Briglia could not determine the nature of Wesley's illness because Dr. Punger's note did not provide an explanation for Wesley's five absent days of work. Also, Dr. Punger was not Dr. Shadani, the doctor who had previously provided Wesley's medical certifications for FMLA leave. Briglia was concerned for Wesley's safety and the safety of her co-workers. On August 4, 2016, Briglia made an independent Human Resources decision and requested by letter that Wesley provide a more detailed explanation from Dr. Punger for her absences, to ensure Wesley was fit for duty to return to work. Briglia had the Civil Unit personally serve the letter dated August 4, 2016, to Wesley at her residence. On August 4 2016, Wesley called Briglia to address her displeasure with the request for details from her physician and the personal service at her residence a second day in a row. Wesley described the SLCSO actions as embarrassing, harassment, retaliation, discrimination, and a violation of her rights. Wesley informed Briglia that they were making her situation worse. Briglia told Wesley she would return her call. On August 5, 2016, together Briglia and Lt. Sheeler called Wesley back to explain that it was within SLCSO policy to verify details of medical conditions. They further told Wesley that since the release was signed by a physician other than Dr. Shadani who had previously provided the explanation for her FMLA leave medical certifications and absences, the medical reasons for the absences needed to be clarified and provided. Lt. Sheeler and Briglia also told Wesley that workplace safety was the priority that created the need for the request in order to both protect employees and to make sure SLCSO is not going against the orders of Wesley's doctor. It was also explained to Wesley that civil service was necessary because she did not claim her certified mail, she needed to be notified, and she could not return to work without a fitness for duty clearance. Wesley did not believe Briglia and Lt. Sheeler. Each request for medical documents caused Wesley additional stress. Wesley admitted at hearing that she did not claim her certified mail. Afterwards, Wesley provided a medical excuse slip from Dr. Punger, clarifying that Wesley's absences were due to migraines and high blood pressure. Human Resources allowed Wesley to return to work after receiving Dr. Punger's excuse slip. On August 22, 2016, Wesley filed a complaint against Briglia. On August 22, 2016, Wesley received a corrective action for abuse of sick leave and an informal counseling for the five sick absences in four months that were not FMLA leave related. Wesley violated agency policy by taking time off without accrued sick leave. On or about September 8, 2016, Wesley provided SLCSO a Certification of Health Care Provider for Employee's Serious Health Condition signed by Dr. Shadani. On September 19, 2016, Wesley filed a complaint regarding the August 22, 2016, corrective action. After reviewing the corrective action, Capt. Lawhorn found the corrective action appropriate and the informal discipline fair and supported by policy. Wesley did not lose pay for the discipline. On September 22, 2016, Wesley filed a discrimination case with the FCHR, alleging SLCSO discriminated against her by subjecting her to harassment and discrimination, and retaliation, for taking FMLA leave due to her disability, hypertension. On March 16, 2018, FCHR issued a Determination: No Reasonable Cause. Wesley filed a Petition for Relief on or about April 12, 2018, to contest the determination. Wesley claims in her petition that the requirement that she acquire a second opinion from Dr. Gage, the personal service to her residence by the SLCSO Civil Unit deputies to deliver correspondence, and the requirement that her physician, Dr. Punger, clarify her medical condition to return to work were harassment, discrimination, and retaliation for her utilizing her FMLA leave benefit.
Conclusions For Petitioner: Peggy F. Wesley, pro se (Address of Record) For Respondent: R. W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 30th day of August, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 30th day of August, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) R. W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 (eServed) Peggy F. Wesley (Address of Record-eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether the petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact 2. On April 14, 1983, petitioner received a copy of the "Employee Handbook" published by the Department of Transportation. Job abandonment is explained in the Employee Handbook as follows: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current policy. The petitioner was absent without authorized leave on April 13, 14 and 15, 1987. Petitioner did not appear for work on those days and did not call the office to explain or report his absence. On April 16, 1987, petitioner called the office at approximately 8:00 a.m. to say that no one had come to pick him up. A fellow employee sometimes furnishes petitioner's transportation. By the time petitioner called in to work, he had been absent three consecutive days without authorization. Petitioner had previously been warned about his absenteeism. On March 17, 1987, petitioner was placed on unauthorized leave without pay due to his failure to report to work or notify his supervisor. On March 18, petitioner was sent a letter notifying him that he had to report by March 24, 1987, or he would be dismissed. Thus, petitioner was well aware that he had to notify his supervisor of any absences.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Transportation and finding that Fred P. Noble abandoned his position and resigned from the Career Service. DONE AND ENTERED this 28th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1987. COPIES FURNISHED: Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450 Mr. Fred P. Noble 2516 Queen Street South St. Petersburg, Florida 33705 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Respondent resigned his position of employment with Petitioner and, if not, whether Respondent's position of employment with Petitioner should be terminated for cause, specifically, the Respondent's alleged absence without leave, his alleged abuse of sick leave, and his alleged theft of school property.
Findings Of Fact Respondent was employed by Petitioner as a painter pursuant to an annual contract from January 17, 1983, until January 29, 1993. Respondent was not a member of the instructional staff, a principal, or a supervisor. Respondent did not submit to the Petitioner a formal resignation of his employment, nor did he ever intend to do so. A School Board employee with an annual contract may be dismissed during the term of his contract for cause. Respondent had frequently taken leave during his term of employment with the Petitioner and he was aware of the School Board's policies pertaining to leave. Respondent is a member of a collective bargaining unit represented by the International Brotherhood of Firemen and Oilers, Local 1277, AFL-CIO (IBFO). The collective bargaining agreement between the IBFO and the School Board contains terms and conditions of employment pertinent to this proceeding. Article IV, Section F pertains to "Return from Leave" and provides as follows: Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal. This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent. Article IV, Section A of the collective bargaining agreement pertains to sick leave and provides, in pertinent part, as follows: 3. Sick Leave Charged -- Sick leave shall be charged in no less than half-day segments. Each school or Department shall record absences on an hourly basis. When the appropriate half-day increment is reached, based upon the assigned employee workday, the employee shall have 1/2 day of accumulated sick leave deducted. . . . * * * 10. False Claim -- False claim for sick leave shall be grounds for dismissal by the School Board. Petitioner's Administrative Directive D-3.47(3) is a rule of the School Board and provides, in pertinent part, as follows: (3) District employees shall not convert School Board property, including any equipment and supplies, for personal business or activity. CONVERSION OF SCHOOL BOARD PROPERTY In November 1992, Warren Haan, the paint supervisor for the Petitioner's Department of Maintenance and Operations, was told by Jacques Brisson, Respondent's foreman, that it appeared to him that Respondent was taking school property for his own use. Mr. Haan investigated the allegations and went to the area in the maintenance department where the employees parked their vehicles. Mr. Haan looked into Respondent's personal vehicle and discovered that Respondent had placed inside of his vehicle property of the School Board. The evidence established that Respondent intended to convert this property to his own use. The property, which was taken from the Respondent before he could remove it from school grounds, consisted of an empty paint bucket, painter's rags, a small quantity of caulk, and a caulking gun. Mr. Haan referred this matter to the school security department on January 4, 1993. Respondent had not been disciplined at the time of his alleged resignation because the matter was still under investigation at that time. Respondent testified that other painters regularly took items such as empty paint buckets and paint rags. This self-serving testimony does not establish that Petitioner routinely permitted painters to violate the clear school policies pertaining to unauthorized use of school property. To the contrary, the testimony of Mr. Brisson established that theft had been a problem that he had tried to stop. ABUSE OF SICK LEAVE The Respondent occasionally was employed as a painter by individuals and entities other than the Petitioner. Such employment was permissible, but an employee was not permitted to perform services for private individuals while out on sick leave. The Respondent reported to work on December 3, 1992, and left his employment in the late morning using sick leave for the remainder of the day. That same day, Mr. Haan received information that led him to believe that Respondent had taken sick leave, but that he was working as a painter at a house under construction in an area referred to as Boca Grove in Boca Raton, Florida. Mr. Haan went with Dave Traill, another school board employee, to this private residence at approximately 2:30 p.m. on December 3, 1992, where he observed Respondent's automobile. He went to the residence under construction and asked to see the Respondent. The Respondent thereafter came out of the house and talked with Mr. Haan and Mr. Traill. Mr. Haan and Mr. Traill did not see what Respondent had been doing inside the residence. Respondent testified that he had seen his doctor for a brief appointment earlier that day and had gone from his doctor's office to the residence at Boca Grove. Respondent admitted at the formal hearing that he had agreed to paint the house for the owner, but asserted that he had gone to the house to tell the owner that he would not be working that day. Respondent testified that he had taken vacation leave when he actually worked on the private residence. Respondent admitted that he had spent approximately two hours on December 3, 1992, while on sick leave going over with the owner items of work that he was to perform. This meeting was a necessary part of the painting job he was to do for the owner. From the evidence presented, it is found that on December 3, 1992, the Respondent performed services unrelated to his duties as a school board employee for his personal gain at this house in Boca Grove while absent from his employment with the Petitioner pursuant to sick leave. Respondent abused Petitioner's sick leave policy. ABSENCES WITHOUT LEAVE In January 1993, Petitioner took time off from his work to attend to his wife, who continued to experience physical problems resulting from a heel fracture on August 28, 1992. Respondent contacted his foreman, Jacques Brisson, at approximately 7:30 a.m. on Monday, January 25, 1993, to request that he be allowed to take that week off as vacation time. Mr. Brisson approved that leave, but he informed Respondent that he would have to contact Warren Haan, the painting supervisor, if he wanted to take any additional time off. Respondent was absent from his employment without approved leave on Monday, February 1, 1993; Tuesday, February 2, 1993; Wednesday, February 3, 1993; and Thursday, February 4, 1993. Friday, February 5, 1993, was not a scheduled work day since the paint department was on a four day work week. Respondent testified that he contacted Mr. Haan during the last week of January 1993 and told him he may need to be off work for a week or longer. Respondent also testified that Mr. Haan authorized his leave during the last week of January 1993. Mr. Haan testified at the formal hearing, but he was not questioned about this conversation or whether he authorized leave for the Respondent during any part of February 1993. Mr. Haan testifed that Respondent's employment was terminated because he was absent without authorization for the days in February and that Respondent would have contacted Mr. Brisson to obtain authorization for leave. Respondent later testified that he did not know why he had not contacted anyone prior to being absent on February 1, 2, 3, and 4, 1993. The apparent conflicts in Respondent's testimony are resolved by finding that while Respondent may have told Mr. Haan at some time during January 1993 that he needed to take some time off, he did not seek and he was not given authorization to be absent from his employment on February 1, 2, 3, and 4, 1993. On February 5, 1993, Warren Page, Coordinator of Petitioner's Department of Maintenance and Plant Operations, sent to Respondent by certified mailing a letter which provided, in pertinent part, as follows: This is to confirm that you have not reported to work since January 29, 1993. You have not contacted this office as required to report your intended absences. You have not requested or received approval for a short term leave of absence. Therefore, you are currently absent without approved leave. In the absence of any correspondence from you, I can only assume that you have decided not to continue working as a Painter for the Palm Beach County School Board. Please be advised that your name will be submitted to the Palm Beach County School Board at its next regularly scheduled meeting for acceptance of your resignation from employment. Should you have any questions, feel free to contact this office. Respondent received the certified mailing on Saturday, February 6, 1993. On Monday, February 8, 1993, Respondent contacted Lawrence G. Zabik, the Petitioner's Assistant Superintendent for Support Services, and asked him what he should do about the certified mailing that he had received. Mr. Zabik told Respondent that he should meet with Mr. Page to see if he could work things out. Respondent did not contact Mr. Page, and he did not report to work. During a regularly scheduled meeting in February, 1993, the School Board voted to accept his resignation with an effective date of January 29, 1993. January 29, 1993, was the effective date of the acceptance of Respondent's "resignation" and the date his employment with the School Board was terminated because it was the last day Respondent was out on authorized leave. This action was taken pursuant to Petitioner's Administrative Directive D- 3.27(2)(c), which provides as follows: (c) When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employees stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. By notice dated March 2, 1993, Respondent was notified that the School Board had accepted his resignation as a painter with an effective date of January 29, 1993. The notice dated March 2, 1993, contained an old address for the Respondent. Consequently, he did not receive a copy of the notice until May 24, 1993, when he was officially informed that his employment had been terminated effective January 29, 1993, the last day on which Respondent had been on approved leave. Respondent thereafter requested a formal hearing to contest his termination, and this proceeding followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order which terminates the employment of the Respondent. DONE AND ENTERED this 18th day of May, 1994, in Tallahassee, Leon County, Florida. 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 18th day of May 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4233 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 11 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence established that the incident involving conversion of school board property occurred in November 1992, but that it was reported to Mr. Sapyta on January 4, 1993. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings of fact in paragraphs 1, 4, 5, 6, 7, 13, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2, 3, and 10 are rejected as being unnecessary as findings of fact, but the proposed findings are adopted either as preliminary matters or as conclusions of law. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made. The proposed findings of fact in paragraph 9 are adopted by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached since there is no contention that Respondent had exhausted his sick leave. The proposed findings in the second sentence of paragraph 11 are rejected. Specifically, Mr. Haan's credibility was not eroded as asserted by Respondent. The other findings of fact in paragraph 11 are adopted by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 12 and 14 are rejected as being unnecessary to the conclusions reached since this is a de novo proceeding. The proposed findings of fact in paragraph 16 are subordinate to the findings made. The proposed findings of fact in paragraph 17 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraph 18 are subordinate to the findings made or to the conclusions reached. COPIES FURNISHED: Hazel Lucas, Esquire Palm Beach County School Board Office of the General Counsel 381 Forest Hill Boulevard, Suite C302 West Palm Beach, Florida 33406-5813 Glen J. Torcivia, Esquire One Clearlake Centre 250 Australian Avenue South Suite 1504 West Palm Beach, Florida 33401 Isidro M. Garcia, Esquire 3501 South Congress Avenue Lake Worth, Florida 33461 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has just cause to terminate the employment of the Respondent.
Findings Of Fact The Petitioner is the School Board of Lake County, Florida (Board)(Petitioner). It is charged with operating and managing the public school system in Lake County, Florida, otherwise known as the Lake County School District. The Respondent, at times pertinent hereto, was employed by the Board as a school guidance counselor at Sawgrass Elementary School. Her principal was Rhonda Hunt. During the 2005-2006 school year, the Respondent missed 71 days from her job. In the 2006-2007 year, she missed 97 days. In the 2007-2008 school year, the Respondent missed 87 days from work. The contract for a guidance counselor requires that they work for 221 days per school year. During these times, especially in the 2007-2008 school year, the Respondent had been making repeated requests for leave. Ms. Hunt, her principal, became concerned and in May of 2008 reported the situation about extensive absences, and leave requests, to Ms. Rebecca Nelsen, the Board's Supervisor of Compensation, Benefits and Employee Relations. In the 2007-2008 school year, when Ms. Hunt brought the issue to Ms. Nelsen's attention, the Respondent had missed work the number of days found above, which represented all the days in the school year from February 13th through the end of the school year. In the previous year, she had missed work from the middle of January through the end of the school year. Ms. Nelsen prepared a memo to Deke DeLoach, the Board's Chief of Human Resources, apprising him of the situation regarding the Respondent's absences. She explained to him the situation involving the excessive absences over a 5-year period. She explained to Mr. DeLoach that when an employee has been on extended unpaid leave that, according to Board policy 6.50, her return to employment is dependant upon a position being available. Therefore, while an individual is on extended leave, which is approved, their position becomes available to be filled at the decision of an individual school administrator. Moreover, unpaid leave, the status applicable to the Respondent's situation, must be approved in advance. An employee may not go off-duty on unpaid leave and then get approval for it at a later time. Approval must be requested in advance. A formal request must be made to the Superintendent, for the Superintendent's recommendation to the Board. Extended Illness Leave is a leave category that is required to be approved by the Board as well. Ms. Nelsen therefore explained to Mr. DeLoach that the Respondent had been on extended unpaid leave and, according to the above-referenced Board policy, her return to employment was dependent upon a position being available. Employees are required to have approval for some form of leave before they take leave or miss time from work. If an employee does not have approval for some form of leave and does not come to work, then under Board policy they are deemed to be absent without leave. If that is the situation, the employee can be terminated under Board policy. The School Board must have a recommendation from the Superintendent in order to be able to act on any sort of leave request. Under Board policies, an Extended Illness Leave is required to be approved by the Board. The school fiscal year ends June 30th. July 1, 2008, therefore, was the beginning of the new fiscal year for the 2008-2009 school year. The regular school session then began near the end of August 2008. Ms. Nelsen wrote to Ms. Chavous on August 19, 2008, explaining to her that she had been on unpaid sick leave numerous days, and giving her options to consider. Ms. Nelsen informed her that she must report to work or be considered absent without approved leave, that she could explain to her supervisor any accommodations that she may need, or that she could request Extended Illness Leave. That communication, from Ms. Nelsen to Ms. Chavous, references a July 29, 2008, request for sick leave. Ms. Chavous completed the July 29, 2008, request for sick leave on a Request for Leave of Absence form, which is the form required to be completed by employees who are requesting any kind of leave from the School Board. The July 29, 2008, leave form depicted a request for leave from August 4, 2008, through August 19, 2008. The reason for the leave requested was indicated as "Illness of self.” The Respondent did not have any sick leave available to her at that time. In the 2008-2009, school year, the Respondent was not eligible for leave under the Family Medical Leave Act. This was because she had not worked enough days in order to trigger eligibility under that law. This leave request was denied because the Respondent was on unpaid sick leave the prior year, had missed 87 days, and had never offered an explanation for her need to use sick leave. Therefore, the Board had no basis on which to approve the additional leave request and the Respondent's approved leave ended June 30, 2008. Any leave that the Respondent would have received for any extended illness would have been for the previous school year which was over at the end of the fiscal year, June 30, 2008. Ms. Nelsen gave the Respondent two options in her August 19, 2008, letter: To report to work or be considered absent without approved leave, or To submit a leave request form asking for extended illness leave for the remainder of the year. On August 28, 2008, a request was faxed from the Respondent seeking extended illness leave. The attached doctor's note did not explain the nature of the medical situation or condition, in terms of providing justification for the leave requested. The Respondent submitted a leave request form with that August 28, 2008, request. It did not confirm that she was asking for extended illness leave for the school year. Instead she requested leave from August 4, 2008, until October 30, 2008. Since School Board policy required the Respondent, in this situation, to request leave for the remainder of the school year, Ms. Nelsen sent an e-mail to the Respondent telling her that she had no available sick leave to use and again telling her that she had the option to either report to work or to request an extended illness leave for the remainder of the year. That communication was sent on August 29, 2008, the day after the Respondent faxed the form requesting leave through October. The Respondent then sent Ms. Nelsen another leave request form in response to the August 29, 2008, e-mail. It again requested leave from August 4, 2008, through October 30, 2008. On September 9, 2008, a letter was sent from the Superintendent to the Respondent, explaining that the Respondent had not reported to work and that she had not requested extended illness leave. Consequently she was informed that she was now considered “absent without approved leave” and would be recommended to the School Board for termination of employment. When the Superintendent sent the letter to the Respondent, on September 9, 2008, the Respondent was not on approved leave. She was absent without leave under the terms of the School Board policy. Pursuant to that policy she was therefore subject to being terminated. Ms. Nelsen received three leave request forms from the Respondent, none of which requested leave for the remainder of the school year, and none of which gave an explanation for the basis of the medical condition. The Respondent's response to these facts was her statement to the effect that "[I]t was just always told to me that you can't request for more leave than what your doctor has put on the form. So, therefore, that's why I put the dates there." She also acknowledged that sometimes she does not remember some things or doesn't respond as fast as she should. Therefore she simply stated that she believed, in effect, that she had submitted everything that she could and had explained her situation to the best of her ability at the time. The collective bargaining agreement between the Lake County School District and the Lake County Education Association includes the position of guidance counselor. That contract references the Board policy which makes it a terminable offense to be absent without leave. The recommendation to the Board, prior to the Respondent making a Request for Hearing, was that she be terminated for being absent without leave. The Respondent's prior leave had expired at the end of the 2007-2008 school year. When the first day of school started in the current school year of 2008-2009, the Respondent did not report to work. The Respondent probably would have been unable to work because of her illness before January 2009. She would therefore have missed all of August, September, October, November, and December.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED that a Final Order be entered by the Lake County School Board finding that the employment of the Respondent, Latonya Chavous, be terminated for just cause. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 26th day of June, 2009. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Latonya Chavous 136 Desiree Aurora Street Winter Garden, Florida 34787 Dr. Susan Moxley, Superintendent Lake County Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
