The Issue Whether Respondent is guilty of an unlawful employment practice by discrimination against Petitioner on the basis of handicap.1/
Findings Of Fact Petitioner's Charge of Discrimination arises out of her employment with Respondent Children's Home Society (CHS) and a series of medical leaves in the years 2000-2001, which ultimately resulted in loss of her position. Respondent CHS is a non-profit social service organization established over 100 years ago. It is the oldest private child welfare service in Florida. It provides a range of services for the benefit of children and families throughout the state, including but not limited to counseling and support services, adoption, residential care, and home-based services. Petitioner appeared at the November 7, 2003, disputed- fact hearing using a cane. The undersigned observed that she seemed to experience pain at movement of her back and one leg. She presented no supportive medical evidence that she is currently disabled/handicapped and little to explain the cause of her present mobility problems or when they first appeared, except that one of her explanations for her current condition is that she was held against her will in a psychiatric center, in June 2002, pursuant to a circuit court Order, and at that time she fell and broke her back and leg. This occurred a year after Respondent had declared Petitioner's position vacant. Petitioner also testified that on March 29, 1999, on her way to work with CHS, her back and legs were injured, her face was crushed, and her teeth were shattered in an automobile accident that totaled her car. There is no evidence that she was off work with CHS for any period of time in 1999 or that any workers' compensation claim was made by her to CHS at that time. Petitioner did request a wage statement from CHS in connection with some automobile insurance claims in 1999. Also, in 2001, Petitioner also made a claim to CHS's insurance company for long-term disability benefits on the basis of this automobile accident, as more fully described below.3/ It is significant that her September 29, 2001 Charge of Discrimination did not list her back and legs as her handicap. Her November 14, 2002 Petition for Relief mentions the 1999 automobile accident. In 2000-2001, Petitioner was Program Supervisor I for CHS's Healthy Families Program in the Lake County area of CHS's Mid-Florida Division. She was in charge of the North Lake area, which encompasses Fruitland Park, Tavares, Leesburg, Lady Lake, Mt. Dora, Astor, Paisley, Sorrento, and other unincorporated areas of North Lake County. The Healthy Families Program is a very demanding one. Its Program Supervisors I have multiple and complicated responsibilities. As a Program Supervisor I for the Healthy Families Program, it was Petitioner's job to provide hands-on supervision to six paraprofessional Family Support Workers (FSW); ensure that rigorous program standards were maintained by them and other paraprofessionals and interns through weekly (two-hour minimum) formal staffings of each case; conduct ongoing case file reviews for quality of documentation; conduct year-end performance evaluations of supervised staff through information gained during the weekly staffings, file reviews, data related to stated objectives, home visits, and telephone quality assurance contacts with all clients; coordinate activities among and between staff (such as Christmas food and toy drives); coordinate comprehensive training and orientation for staff; provide staff with ongoing coaching throughout program implementation; oversee new case staffing and assignments with Family Assessment Workers (FAW); provide professional intervention for difficult cases; conduct joint home visits with all case load families every quarter; generate and/or oversee the reporting of program data; provide monthly comprehensive regular reports to a Program Manager on the status of all program activity; provide home visits and documentation in the absence of an FSW; cross-train to be an FAW; and assume new case assessment and documentation in the absence of an FAW. Program supervisors, with peers, conduct six to eight weeks of intensive training for each new FSW. After the initial training, the Supervisor is responsible for an additional 40 hours of ongoing training. The weekly staffing on every case is mandatory. Healthy Families Florida allows no excuses for a missed staffing on even one case in one caseload in one week. The program either meets the standard or it does not. This is also true for program objectives in which seventeen measurable goals must be met for every case. Program supervisors are required to assure constant and accurate data entry of all program information. Accuracy and timeliness of the data provide a measure of the program's success or failure in achieving program objectives. Program supervisors must meet every new family within the first month of service and conduct joint home visits with each family each quarter. Quality assurance telephone calls must be conducted with each family every quarter. Case files must be reviewed constantly to assure that the required documentation is in place. Finally, program supervisors must meet with the Health Families Program Specialist each quarter for a file audit and program review. In June 2000, Petitioner took her first Family Medical Leave Act (FMLA) leave. She was out on FMLA leave for four weeks and two days, returning in July 2000. During this period of time, Petitioner gave birth to a live male infant. The child died while Petitioner was strapped to the table in the delivery room and hospital personnel dropped the infant. Quite naturally, this tragic event, over which she had no control, caused Petitioner psychological trauma and enormous grief. She also maintained that the lack of appropriate after-care at that time might have resulted in her subsequent need for FMLA leave and a hysterectomy, as more fully described below. CHS's FMLA policy was contained in its Employee Handbook. In 1995, Petitioner acknowledged, in writing, receipt of the Employee Handbook. In 1996, CHS's leave policies were amended, and a clear equal employment opportunity and anti- discrimination policy was added to the Handbook. Petitioner maintained that she had signed the receipt for the Handbook before the foregoing amendments. That testimony by Petitioner is credible, but it is also clear that Petitioner subsequently became aware of CHS's leave policy via explanations in a series of letters to her from CHS's Human Resources Department over the course of her second FMLA leave of absence, which began in November 2000. FMLA leave is calculated on a twelve-month rolling calendar period. Under the FMLA, Petitioner was guaranteed reinstatement to her former position as Program Supervisor I or an equivalent job with the same pay, benefits, terms, and conditions of employment as long as her total FMLA leave (including all leave periods) did not exceed twelve weeks in a twelve-month period. CHS characterizes all medical leave as FMLA leave if the employee is eligible for FMLA leave. CHS requires that accrued paid vacation and sick leave be utilized before utilizing unpaid FMLA leave. This allows the employee to draw full salary and continue to receive health insurance benefits as long as possible before having to resort to unpaid leave, but it means that FMLA leave, vacation leave, and sick leave are depleted simultaneously. CHS automatically offers any employee who is on FMLA leave for a serious health condition an opportunity to convert the leave to disability leave after his or her FMLA leave expires. Under this CHS leave policy, an employee does not have to be handicapped or disabled to qualify for disability leave. At all times material, Julie Ormond, Healthy Families Program Manager, was Petitioner's immediate supervisor. Ms. Ormond reported to Glenna Osborne. Glenna Osborne was the Director of Program Operations for CHS's Mid-Florida Division. She supervised three programs: Family Builders, Healthy Families, and Responsible Fatherhood. Ms. Osborne was in charge of 77 employees and 10 supervisors. Ms. Osborne has a Master's Degree in Human Development and 25 years' experience in management. On or about October 11, 2000, Ms. Ormond wrote a memo to two Healthy Families supervisors, one of whom was Petitioner. The memo detailed certain problems with both supervisors' areas: supervision duties, data entry requirements, and report completions. Ms. Ormond requested that the problems be corrected and in place no later than October 30, 2000. On November 3, 2000 and November 7, 2000, Ms. Ormond copied Ms. Osborne with memos sent only to Petitioner on the same dates, detailing that some of Petitioner's programs had serious problems, now including complete absences of some data entry, late data entry, and both failure to classify and inaccuracy of classification of some clients. There also were problems in Petitioner's area with meeting State requirements and registering childhood immunizations. Petitioner was instructed to resolve the problems in her area as soon as possible. Ms. Ormond also copied Ms. Osborne with a memo along the same lines, dated November 7, 2000, from another CHS employee, Jean Plescow. When data entry is incomplete or late, it is not always possible to readily determine whether the problem is just a delayed data entry or if there also has been an actual failure to accomplish the act, plans, staffings, trainings, and immunizations for which the data was supposed to be entered. Over time, as related more fully below, it appeared that there were more problems with Petitioner's job performance, and the performance of the staff she supposedly had trained, than merely a failure to transpose information to a computer from other records. Before her work problems had been resolved, Petitioner went out a second time on leave associated with a medical problem. It was Petitioner's affirmative duty to apply for leave initially and to seek extensions, if necessary, of any leave granted. Although Petitioner testified that she filled out all the vacation and sick leave forms necessary before going out on "medical leave"; that she left in October 2000; and that when she left, she fully intended to be back at work before her accrued vacation and sick leave ran out, the following facts are found upon the greater weight of the credible evidence as a whole. At Petitioner's request dated November 21, 2000, CHS again placed her on FMLA leave as of that date. Petitioner's last day of work before this second period of FMLA leave was November 19, 2000. On November 21, 2000, Petitioner informed CHS that she expected to return to work on or about January 23, 2001. Ms. Osborne's testimony was credible to the effect that she believed that Petitioner was going out on leave in November 2000 for surgery related to the June 2000 birth of Petitioner's child and not for surgery related to any prior automobile accident. Ms. Osborne is also credible that although she knew that Petitioner had been in an automobile accident in 1999, she never knew the extent of Petitioner's injuries from that accident and had never received any doctors' reports or any requests for accommodation of a handicap from Petitioner. Ms. Osborne did not perceive Petitioner as handicapped for any reason at any time between 1999 and November 19, 2000. Petitioner claimed that she only took the Program Supervisor I job on the condition "that if it were too hard, I could have my old [CHS] job back." Petitioner testified about how excellent she believed she performed her Program Supervisor I job prior to November 19, 2000, and that her work was up to date and commendatory when she took her second medical leave. She further stated that, as of November 19, 2000, she had accrued enough vacation and sick leave to cover the time she expected to be out on her second medical leave. Upon the facts found in Findings of Fact 23 and 24, it is further found that Petitioner never requested or received from CHS any workplace accommodations for a handicap dealing with her back or legs prior to her absence beginning in November 2000. Furthermore, all the medical excuses Petitioner supplied to CHS after November 19, 2000, support a finding that iron deficiency anemia from a uterine fibroid and a surgical hysterectomy with resultant recovery time caused Petitioner's absence from work after November 19, 2000, even though Petitioner supplied a different explanation to CHS's long-term disability insurance company after her leave ran out, as more fully discussed below. As Director of CHS's Mid-Florida Division's Human Resources Department, Linda Barry was responsible, in 2000-2001 for implementing and interpreting CHS's policies and procedures; benefits administration; approving transfers and promotions; approving and administering FMLA leaves and other leaves of absence; making termination decisions; and keeping apprised of CHS's hiring needs. On November 28, 2000, Ms. Barry sent, and Petitioner received, a letter advising that because of her June 2000 leave, only seven weeks and two days remained of Petitioner's FMLA leave and requesting that Petitioner complete and return the FMLA paperwork. In the meantime, Ms. Osborne assessed the North Lake staffing situation and documented her concerns in a November 30, 2000 memo to Ms. Ormand. Ms. Osborne noted some of Petitioner's program documentation was satisfactory and some was exemplary, but that there still existed serious problems with missing, incomplete, or inaccurate program documentation and inadequate training and supervision of Petitioner's team. Ms. Osborne requested that Ms. Ormand bring these deficiencies to Petitioner's attention as soon as Petitioner returned from FMLA leave, and that if Ms. Osborne's observations were confirmed by Ms. Ormand, the problems should be addressed at that time by Ms. Ormond in Petitioner's evaluation. During Petitioner's absence beginning November 19, 2000 and continuing into 2001, three other area supervisors performed their own full-time responsibilities and divided Petitioner's job responsibilities among themselves. Janie Counts, Sumter County Supervisor, traveled several times a week to provide fill-in supervision for two of Petitioner's FSWs. The South Lake Supervisor, Stephanie Ellis, provided fill-in supervision for two more of Petitioner's FSWs. Ms. Ormand traveled from Tavares to Leesburg to provide fill-in supervision for Petitioner's two remaining FSWs. If one of the three fill- in supervisors was ill or on leave, the remaining two fill-in supervisors oversaw Petitioner's two remaining FSWs, continued to cover their own teams, and covered the other absent supervisor's six FSWs. In the course of scrambling to carry on CHS's regular workload in Petitioner's absence, these three supervisors reported to Ormand and Osborne more problems they uncovered in Petitioner's operation. Ms. Counts sent Ormand and Osborne written reports. Her December 10, 2000 report reflected that Petitioner had left behind inadequate program documentation, had failed to prepare her supervision notes, had missing family support plan updates, had late data and missing data, and had failed to provide adequate training to her FSWs. Ms. Counts reported to Ormand and Osborne in a December 15, 2003 memo that she had uncovered even more problems that had existed in Petitioner's program before Petitioner went on leave. She also related that Petitioner had come to the office that day for the office's Christmas Lunch. CHS's FMLA leave policy required the existence of a "serious health condition." A doctor's certification supporting an FMLA leave is required. Physicians are provided an instruction sheet explaining the definition of "serious health condition", so they can categorize the patient's illness. Sometime in December 2000, Petitioner's doctor, Dr. Grousse, provided Ms. Barry with medical certifications to support Petitioner's then-current FMLA leave. Dr. Grousse listed Petitioner's condition as severe iron deficiency anemia and stated that she needed a hysterectomy soon. Dr. Grousse advised that Petitioner could not perform any work at that time. On December 20, 2000, Ms. Barry sent Petitioner a memo explaining her FMLA leave rights and requesting a medical certification from her surgeon. She also informed Petitioner of CHS's policy of applying vacation and sick leave concurrent with FMLA leave and stated the balance of Petitioner's FMLA leave remaining after her leave in June 2000 had been seven weeks and three days. She noted that as of CHS's December 15, 2000 payroll, Petitioner had 313.32 hours accrued vacation time and 124.22 hours accrued sick time. On December 27, 2000, Dr. Boggus provided Ms. Barry with medical certification to support Petitioner's FMLA leave. He indicated that Petitioner needed pelvic surgery, that she could not perform any work at that time, and that she would need six weeks off work after the surgery for recovery. He categorized Petitioner's condition as a "1" and "2", which meant that her condition required a stay in the hospital and a work absence plus treatment. He did not categorize her condition as "chronic" (requiring periodic treatment), nor did he categorize her condition as "permanent/long term" (requiring supervision). In the meantime, Petitioner's job duties still had to be covered and her team re-educated and brought up to grade if CHS's program objectives were to be met. Ms. Barry sent, and Petitioner received, a certified letter dated January 10, 2001, advising Petitioner that her FMLA leave would expire on January 12, 2001; extending her leave to January 22, 2001, as unpaid disability leave; advising her that she could continue to use any remaining accrued vacation time; and requesting that she submit a physician's statement for any leave she would require beyond January 22, 2001. The FMLA does not require that employees who are absent more than 12 weeks in a 12 month-period be returned to the same or a comparable position. Significantly, Ms. Barry's January 10, 2001 letter stated that although it was not guaranteed that Petitioner's Program Supervisor I position would be available when she was ready to return from leave, an effort would be made to place Petitioner in her previous position or a comparable one, or if no such position were available when Petitioner was ready to come back, she might be eligible for re- hire should a position later become available and her past work history warranted re-hire. The crucial point here is that CHS expressed no obligation to hold Petitioner's job for her after her FMLA leave ran out, but stated that it would try to give her a job in the same capacity when she returned. In fact, on January 12, 2001, Petitioner had her hysterectomy, which, according to Dr. Boggus's December 27, 2000 certification, meant that Petitioner would have then needed an additional six weeks, or until approximately February 23, 2001, before she could return to work in any capacity. However, Petitioner's FMLA leave expired on January 12, 2001. She did not contact CHS until after that date, and only then did she send in medical information about the date of her surgery. (See Finding of Fact 45.) By the time Petitioner's FMLA leave had expired on January 12, 2001, the fill-in supervisors had reported to Ms. Osborne that they were burned out with having to work their own full loads and also deal with the deficiencies left behind by Petitioner. One fill-in supervisor found it impossible to find the time to retrain the two FSWs assigned her from Petitioner's team while trying to maintain her own workload as a full-time supervisor. Another fill-in supervisor requested a transfer to a less demanding program and a demotion. By the middle of January 2001, Osborne and Barry had concluded that the undue hardship on the fill-in supervisors was so great that it was impossible to hold Petitioner's position open any longer. They felt to do so would seriously compromise the extent and quality of services that CHS could offer its clients and would jeopardize the well being of the other supervisors who were covering for Petitioner. Faced with Petitioner's not returning to work in any capacity for an indeterminate period of time, Barry and Osborne decided they had no choice but to replace Petitioner when her FMLA leave expired. According to Ms. Barry, Dr. Neil Finkler provided a medical certification update on behalf of Petitioner to her "toward the end of January 2001." Because Dr. Finkler's undated certification is referenced in her January 23, 2001 letter to Petitioner (see Finding of Fact 46), it is concluded that Ms. Barry received Dr. Finkler's certification before January 23, 2001, and probably received it by the January 22, 2001 date she had required in her January 10, 2001 letter for a reply from Petitioner. Dr. Finkler's certification advised that surgery had been performed on January 12, 2001, and that Petitioner would be incapacitated until February 23, 2001. Dr. Finkler categorized Petitioner as a "1", which is defined as requiring a stay in the hospital and a work absence plus subsequent treatment. Dr. Finkler did not categorize Petitioner's condition as chronic, requiring periodic treatment or as a permanent/long term condition requiring supervision. On January 23, 2001, Ms. Barry sent, and Petitioner received, a certified letter confirming that CHS had received Dr. Finkler's certification; notifying Petitioner that CHS had extended her leave to February 23, 2001, as unpaid disability leave, but that Petitioner could continue to use any remaining accrued vacation time; notifying her that as of CHS's January 15, 2001 payroll, her vacation balance was 269.54 hours; and advising that when Petitioner was ready to return to work she would have to provide a fitness-for-duty certification. The letter also stated: Because the operations of CHS require that vacant positions be filled, a disability leave of absence does not guarantee that your job will be available when you return. An effort, however, will be made to place you in your previous position or a comparable one. If no such position is available, you may be eligible for re-hire should a position become available for which you are qualified and your work history warrants rehire. The representation that an effort would be made to return Petitioner to her former position was probably untrue, given that Ms. Barry already knew that a replacement had to be hired soon. However, comparable positions might be available. (See Findings of Fact 48 and 49.) On January 26, 2001, Ms. Counts submitted a report of her fill-in supervision for Petitioner to Ms. Ormand. She reported that Petitioner's subordinates had not been trained by Petitioner on charting requirements and had not even been given certain forms. Effective January 29, 2001, after the automatic extension to January 22, 2001, given Petitioner in Ms. Barry's January 10, 2001 letter, had expired, but before the February 23, 2001 extension specified in Ms. Barry's January 23, 2001 letter, had been reached, CHS selected Belinda Henson to replace Petitioner as the Program Supervisor I for the Healthy Families Program in Lake County. Ms. Hensen would be on probation for six months, but she was considered a permanent employee as of her date of hire, to the extent that she would not be ousted from Petitioner's old Program Supervisor I position even if Petitioner chose to return to work. Although Petitioner was replaced as Program Supervisor I in her area on January 29, 2001, CHS still considered Petitioner to be an employee on leave status. CHS did not foreclose the possibility that it could have other Program Supervisor I openings available when Petitioner was ready to return from her leave. On February 16, 2001, Ms. Ormand sent a memo to Ms. Barry and Ms. Osborne, stating the problems with Petitioner's past job performance as expressed by the fill-in supervisors. When Petitioner's extended leave expired on February 23, 2001, Ms. Barry sent, and Petitioner received, a letter of that date, stating that CHS had not received any further medical certification to authorize leave beyond February 23, 2001, and that if Petitioner needed to continue her leave, she must provide an updated physician's statement showing such leave to be necessary. Ms. Barry's letter also informed Petitioner that her previous position had been filled, but Should you be able to return to work, an effort will be made to place you in a comparable position, should one be available. If no such position is available, you may be eligible for rehire as a new employee if you should apply for an available position in the future. On February 27, 2001, Petitioner faxed Ms. Barry a copy of a note from Dr. Boggus, advising, "No lifting over 5 lbs for one month. She may return 25 hours/wk for next one month." Dr. Finkler also provided a note stating that Petitioner could return to work on February 27, 2001, "but only work up to 25 hours/week with no heavy lifting for the next 1 month." There were no part-time openings in the Mid-Florida Division as of February 27, 2001. Petitioner's accrued paid vacation leave must have run out at about this time. Ms. Barry sent, and Petitioner received, a certified letter dated March 5, 2001, advising Petitioner that Ms. Barry had received the two doctors' notes restricting Petitioner to part-time work and that there were no part-time positions currently available in CHS's Mid-Florida Division. However, Ms. Barry extended Petitioner's leave for one month to March 27, 2001, the time period of her restriction to part-time work. Petitioner could have applied in other CHS divisions for any available part-time position for which she was qualified. The record is silent as to whether there were any such part-time positions available then, but it affirmatively appears that Petitioner did not inquire into, or apply for, any part-time positions that may have been available outside of the Mid-Florida Division. Petitioner testified that she drove to a CHS office in Orlando either to get copies of her records or to apply for a position (her purpose is not entirely clear from her testimony). Because the parking lot was undergoing excavation, she just drove away. This is not a reasonable explanation for not applying for a position.4/ As set out above, Petitioner had established a pattern of not taking affirmative action to timely supply the necessary medical information to Ms. Barry. Petitioner repeatedly had waited until her leave expired before submitting any medical documentation. Nonetheless, CHS still considered her an employee through March 27, 2001.5/ Petitioner testified that she made an unemployment compensation claim and CHS fought it. She further testified that she was denied her unemployment compensation benefits, but someone in the Governor's Office intervened and she was then paid one unemployment compensation check only. The testimony concerning the Governor's Office is uncorroborated and not credible. However, Exhibit P-7, shows that on January 3, 2002, an Unemployment Compensation Appeals Referee entered a "Decision", which reads, in pertinent part, as follows: Issues involved: SEPARATION: Whether the claimant [Petitioner] was discharged for misconduct connected with work or voluntarily left work without good cause (including cause attributable to the employing unit or illness or disability of the claimant requiring separation); pursuant to Sections 443.101(1), (9), (10), (11); 443.036(29), Florida Statutes; and Rule 38B- 3.020, Florida Administrative Code. LEAVE: Whether the claimant's unemployment is due to a leave of absence voluntarily initiated by the claimant, pursuant to Sections 443.036(28) and 443.101(1)(c), Florida Statutes. Findings of Fact: the claimant became employed by a children's home in August, 1994. Her last position was program supervisor. The employer was subject to the terms of the Family Medical Leave Act (FMLA). In June, 2000, the claimant used four weeks and two days of FMLA leave. That left a remaining balance of FMLA leave of seven weeks and three days to be used within 12 months. Effective November 21, 2000, the claimant again began FMLA leave which expired on January 12, 2001. At that time the claimant was unable to return to the full duties of her position because of a temporary disability. The employer had no part-time, light duty work for the claimant. The employer did not terminate her employment, but could no longer guarantee the claimant her position would be held open for her after the FMLA leave expired. The claimant underwent surgery on January 12, 2001. When she was released by her physician for full duty work, her position had been filled. The claimant filed an initial claim for unemployment benefits effective March 18, 2001. Conclusions of law: The law provides that a claimant shall be disqualified for benefits for any week of unemployment due to a leave of absence, if the leave of absence was voluntarily initiated by the claimant. A bona fide leave of absence exists only when the employer and claimant have agreed upon a specific term and the claimant is guaranteed reinstatement to the same or a substantially similar position upon expiration of the leave. The testimony in this case shows that the employer did not guarantee reinstatement to the clamant after her FMLA leave expired on January 12, 2001. Therefore, the claimant was not on a bona fide leave of absence after January 12, 2001, and she was not on a bona fide leave of absence when she filed her initial claim for unemployment benefits. When the claimant did not return to work upon the expiration of the bona fide leave of absence, she became separated from her employment. Because it was the claimant who did not return to her full duty position at that time, and not the employer preventing her from returning to her full duty position, the job separation is considered a voluntary leaving. The law provides that a claimant who has voluntarily left work without good cause as defined in the statute shall be disqualified from receiving benefits. "Good cause" includes only such cause as is attributable to the employing unit or which consists of an illness or a disability of the claimant requiring separation from the work. The term "work" means any work, whether full- time, part-time or temporary. The record and evidence in this case show that the claimant voluntarily separated from her employment on January 13, 2001, because she underwent surgery on January 12, 2001, and she was unable to return to work due to a temporary disability. Thus, the claimant became separated from her employment due to a disability requiring separation. Accordingly, it is held that the claimant voluntarily left her employment with good cause consisting of a disability requiring separation, and she is not disqualified from receiving unemployment benefits. Decision: The determination of the claims adjudicator dated April 16, 2001, is MODIFIED to hold that the claimant voluntarily left her employment with good cause consisting of a disability requiring separation. [Bracketed material and emphasis supplied] It is not certain from the record herein that the foregoing January 3, 2002, unemployment compensation decision ever became final, pursuant to Chapter 120, Florida Statutes. Even if final, and therefore binding on the parties, the decision was made under statutory definitions and tests different from those found in Chapter 760, Florida Statutes, and therefore, the decision is not binding in this case. However, the decision remains instructive as to matters of timeline, such as when CHS knew that Petitioner was claiming to be handicapped and from what cause. (See, below.) Clearly, it appears that Petitioner was not acknowledging any back and leg trouble to the unemployment compensation forum at least as late April 16, 2001, and probably not as of January 3, 2002. Accordingly, it is found, on the basis of Exhibit P-7, that on March 18, 2001, Petitioner filed an initial claim for unemployment compensation benefits. Exhibit P-7 shows that the claim was apparently defended through CHS's Winter Park Office, and the record is unclear as to when Ms. Barry, whose office was located in Jacksonville, or Ms. Osborne, whose office was located in Tavares, found out about the claim. (However, see Findings of Fact 67 and 74.) Because Ms. Barry had not received any further medical certification from Petitioner before Petitioner's leave extension expired on March 27, 2001, she legitimately could have terminated Petitioner's employment on the basis that Petitioner had neither returned to work nor requested an extension of her leave. Instead, On April 3, 2001, Ms. Barry sent, and Petitioner received, a letter advising that CHS had not received any further medical certification indicating Petitioner needed leave beyond March 27, 2001, and stating that Petitioner needed to provide medical certification if she had a continued medical need preventing her from returning to work or that required continued restrictions in the type of work she could perform. The letter further stated that if Petitioner were able to return to work, she must submit a fitness-for-duty certification. Ms. Barry requested that Petitioner submit any documentation regarding her medical status no later than April 16, 2001. On April 4, 2001, Ms. Barry received a telephone call from an attorney, Mr. Larry Colleton, requesting information on how Petitioner could apply for long-term disability insurance benefits. Ms. Barry did not believe Petitioner was eligible for long-term disability benefits because Petitioner had already been released for part-time work (see Finding of Fact 52), but she sent Petitioner an explanation of long-term disability benefits, including information that they applied to any employee who was disabled for six months or longer; an explanatory booklet; and forms to apply directly to the insurance company for that type of benefit. Ms. Barry copied Mr. Colleton with her explanatory cover letter to Petitioner. Exhibit P-7 shows Mr. Colleton as Petitioner's lawyer in the unemployment compensation case. The record is silent as to whether Ms. Barry knew, on April 4, 2001, that there was an unemployment compensation claim or of Mr. Colleton's involvement therein. Ms. Barry testified that she did not interpret Mr. Colleton's telephone request concerning long-term disability benefits to be notification of a handicap or a request for an accommodation for a handicap. On April 11, 2001, Petitioner faxed Ms. Barry a March 28, 2001 letter from Dr. Boggus advising that although Petitioner had been "completely and totally disabled from her usual occupation through March 23," she was now cleared to return to work. The fax also included a copy of Petitioner's completed application form for long-term disability benefits directed to CHS's insurance company. This form, signed by Petitioner, represented that she was disabled due to the 1999 automobile accident and the absence of any jobs within CHS that fit her limitations. Upon receiving the application for long-term disability benefits signed by Petitioner, Ms. Barry assumed that Petitioner would thereafter deal directly with CHS's insurance company to support her application for long-term disability benefits, including sending it a medical excuse dated after the March 28, 2001 release by Dr. Boggus, which Ms. Barry had received. Ms. Barry submitted the employer portion of the long- term disability paperwork to the insurance company on April 30, 2001. Exhibit P-7 shows that on April 16, 2001, an unemployment compensation claims adjudicator entered an order, which held Petitioner ineligible for unemployment compensation benefits. The undersigned is persuaded that this would be the last date reasonable to suppose that Ms. Barry did not know about the unemployment compensation claim. By letter dated May 9, 2001, the long-term disability insurance company sent Petitioner a letter requesting a statement from her doctor to support her long-term disability application. Ms. Barry received a copy of this letter. By letter dated June 4, 2001, the insurance company advised Petitioner that because Petitioner had previously been asked for proof of disability, and disability documentation had not been received, the insurance company was closing her file on long-term disability benefits. Ms. Barry received a copy of this letter, too. The last medical release that Ms. Barry ever received from Petitioner was Dr. Boggus's unrestricted return to work release, dated March 28, 2001, which Ms. Barry received on April 11, 2001. (See Finding of Fact 65.) By letter dated June 11, 2001, Ms. Barry notified Petitioner that she was being removed as an active CHS employee and that CHS was closing her personnel file because she had not submitted any doctor's certification indicating a medical need for a continued leave of absence and she also had not applied for any vacant open positions within CHS. This letter was the effective termination of Petitioner by Respondent. The decision to terminate Petitioner was made by Ms. Barry and Ms. Osborne. There is no persuasive evidence that, between March 28, 2001, when she was medically released to return to work and June 11, 2001, when she was terminated, Petitioner had applied for any CHS positions. Barry and Osborne each credibly testified that they had no reason to believe at any time material that Petitioner was handicapped, because Petitioner's physician, Dr. Boggus, had released her as being fully able to perform the functions of her job on March 28, 2001, and as of the date of her termination, Petitioner had never complained to Barry or Osborne that she believed that she was being discriminated against on any basis. On June 19, 2001, after the first unemployment compensation decision which apparently went against her (see Finding of Fact 67), Petitioner wrote Heidi Burkett, an employee in the same Jacksonville CHS Human Resources Office as Ms. Barry. The letter referenced Petitioner's unemployment compensation claim number. By this letter, Petitioner requested reinstatement to the position of "Program Supervisor in the Lake County area or an elevated position." This letter mentioned nothing about any handicap. On June 19, 2001, there were no Program Supervisor I openings in CHS, and Petitioner was not qualified for a position above Program Supervisor I. Petitioner testified that she had a "Paralegal Master's," but in Ms. Osborne's view, that degree would not render Petitioner eligible for any open elevated position. Petitioner would have had to have an advanced degree in a field related to childcare or in social work in order to fit the qualifications of any higher position with CHS. Furthermore, Petitioner would not have been promoted to an elevated position until her supervisors had an opportunity to work with her to make sure she had resolved the performance issues which were uncovered in her Program Supervisor I position while she was on leave. There is no evidence that Petitioner made any further contacts after her June 19, 2001 letter in an attempt to return to CHS, or that she applied for, or expressed any interest in, any positions below Program Supervisor I inside or outside of Lake County. The September 29, 2001 Charge of Discrimination was the first notice Ms. Barry had that Petitioner was claiming discrimination. Petitioner claims that after June 2001, she was gainfully employed as a teacher "for a while" by the Lake County School Board and/or a technical institute. She did not demonstrate that any accommodation for handicap was necessary in these employments. The record is silent as to her earnings since her separation from CHS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 4th day of March 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2004.
Findings Of Fact The Petitioner, Johnny L. Richardson, was a test technician in the receiving/inspection department of the Respondent, Group Technologies Corporation, when he became ill, had to be hospitalized, and went on a medical leave of absence on September 6, 1990. Before he was able to return to work, in addition to the illness that resulted in his initial hospitalization, the Petitioner suffered two pulmonary embolisms that required hospitization and had a lobectomy (removal of part of one lung). At the time of his ultimate discharge from the hospital, the Petitioner was diagnosed with a number of medical conditions. He had hypovolemic shock, viral myocarditis, with cardiomyopathy and right ventricular failure, pulmonary abscesses, congestive heart failure, leukocytosis, chest wall pain and pleurisy. In addition, he already had insulin dependent diabetes mellitus. Because of the length of the Petitioner's medical leave of absence, and the Respondent's needs, the Petitioner's former position in the receiving/inspection department was filled during his absence, in accordance with standard company policy. The Respondent's treating physicans released him to return to work on or about July 2, 1991. At the time, the Respondent was aware of the Petitioner's preexisting insulin dependent diabetes mellitus, and was generally aware that the Petitioner's health problems had required hospitalization and a medical leave of absence. But the Respondent did not have detailed medical information concerning the Petitioner's other medical diagnoses. On or about July 2, 1991, the Petitioner contacted the Respondent's staff nurse to advise her that he had been released to return to work. She made arrangements for him to be seen on July 8, 1991, by the Respondent's consulting physician, in accordance with standard procedures for employees on leave of absence for over 90 days. The consulting physician was a specialist in occupational medicine and had a working knowledge of the Respondent's work place and the jobs performed by its employees. He was to use this expertise and knowledge to verify that the employee could do the job he was to perform and to determine whether any restrictions or limitations were appropriate in view of the employee's medical condition. The staff nurse also advised the Petitioner to contact the Respondent's Human Resources Representative (HR Rep) to tell her that his treating physicians had cleared him to return to work. The next day, the Petitioner telephoned the HR Rep, but she was out on vacation until July 8, 1991. On or about July 8, 1991, the Petitioner was seen by the company's consulting physician. A routine medical examination was conducted, including taking a history. The Petitioner told the doctor that he had coronary heart disease, diabetes, lung abcess and hypertension and was taking various medications, including Coumadin and Lanoxin for his heart disease, Lasix and Prednisone for his chronic lung disease and breathing disorders, and insulin for his diabetes. He also reported the lobectomy. Based on the medical examination, the doctor prepared a report stating that he needed medical records from the Petitioner's treating physicians and that the Petitioner would need a job check before reemployment to ascertain the suitability of the particular job in which he was placed. In addition, the report stated that the Petitioner would have to avoid physical stress and avoid lifting heavy weight. The report also suggested that the Petitioner's exposure to chemicals may have to be limited. The doctor also filled out and gave the Petitioner a form stating that the "disposition" of the examination was that the Petitioner was to have "no duty." The Petitioner gave this form to the staff nurse, but the evidence is not clear when. On the day of the examination, before the report was sent to the Respondent's medical office, or even typed, the doctor telephoned a report to the Respondent's staff nurse. The nurse in turn telephoned the HR Rep and told her that, per the doctor's instructions, the Petitioner was not to work with chemicals and was to limit lifting to 25 pounds. The HR Rep also was advised that it would be best for the Petitioner not to work night shifts due to the medications he was taking. As can be seen, the information on the "disposition" form was not consistent with the information in the written report or with the information in the telephonic report the staff nurse gave the HR Rep that day. The Petitioner also saw the HR Rep on July 8, 1991. (She had just returned from vacation.) It is not clear from the evidence whether, at the time of her meeting with the Petitioner, the HR Rep already had received the telephonic report from the company's staff nurse. During the Petitioner's meeting with the HR Rep, the HR Rep told the Petitioner that she would have to determine whether the company had any test technician positions, or other positions with status and pay commensurate with the Petitioner's former position, that were open. Under company policies, employees returning to work after an extended leave of absence, during which their former positions were filled, were entitled to be considered for other positions with status and pay commensurate with the employee's former position, if any were available. The HR Rep reviewed her open requisition lists and determined that there were no suitable positions open at the time. (On or about June 28, 1991, the Respondent had extended job offers, with start dates in early July, to eight applicants for test technician positions that the company had been in the process of filling in June.) She telephoned this information to the Petitioner on either July 8 or 9, 1991, and told him that she would have to lay him off with recall rights. Actually, company policy provides for laying employees off with recall rights as a result of reductions in work force. It does not specifically apply to the situation where an employee returns to work after an extended leave of absence, during which the employee's former position was filled, and there are no positions with status and pay commensurate with the employee's former position available. But, since there was no other employment status designated by personnel policies for such an employee, the company felt that it was appropriate to lay off such an employee with recall rights. Under company policy, an employee who is laid off with recall rights has a right to be considered for recall before new employees with similar skills are hired. This is not a guarantee of reemployment but only right to be considered for employment before "external candidates" are considered. Actually, even under this interpretation of company policies, the Petitioner should have been laid off with recall rights only if he was ready to return to duty with restrictions (as indicated in the consulting physician's written report, and in the telephonic report from the staff nurse to the HR Rep). If he was unable to return to duty at that time (as indicated by the "disposition" form), he should have been continued on medical leave of absence. At the conclusion of their meeting on July 8, 1991, the HR Rep told the Petitioner that he would be contacted if there were any openings for him, or words to that effect. On or about July 12, 1991, the HR Rep became aware of an employee requisition request with a position with status and pay commensurate with the Petitioner's former position. She contacted the hiring supervisor and asked if he was interested in hiring the Petitioner for the position. The hiring supervisor quickly replied that he was not interested in hiring the Petitioner. Asked why not, he answered that he knew the Petitioner's attendance and performance history from having worked with the Petitioner in past years, and from knowing the Petitioner's reputation, he was not interested in hiring him. Further specifics about the hiring supervisor's reasons for not wanting to hire the Petitioner were neither given nor asked for until approximately January, 1992, which is after the filing of the Charge of Discrimination in this case. If asked, the hiring supervisor would have said that, during a period of time in which they worked together in the early 1980s, the Petitioner was frequently absent from work, frequently wandered away from his work station, and frequently could not be found when needed. Later, in the late 1980s and early 1990, the hiring supervisor had several occasions to inquire as to the reason for delays and was told that there was a bottleneck in the receiving/inspection department because the Petitioner was absent from work again. The Petitioner's absences made it difficult for those depending on the Petitioner's work to meet production deadlines. To attempt to deal with the Petitioner's absences, the company tried to get the employee in the position in the shifts before and after the Petitioner's shift to work overtime. After talking to the hiring supervisor, the HR Rep reported to her supervisor, who helped her research the Petitioner's personnel file to determine if there was "reasonable justification" for the hiring supervisor's rejection of the Petitioner on the basis given to the HR Rep. They learned from the Petitioner's personnel records that, on or about May 17, 1990, the Petitioner's supervisor counseled him that his attendance had to improve. In June, 1990, the Petitioner's performance appraisal reflected the attendance problems. It indicated some improvement but stated that further improvement was necessary for the Petitioner's attendance record to be within company norms. The appraisal also indicated that the Petitioner's performance no longer was improving, as the prior year's appraisal indicated it had been. It is not clear from the evidence whether the HR Rep and her supervisor also reviewed the Petitioner's attendance records. If they had, they would have also seen that the Petitioner was absent from work a total of 220 hours in 1989, not including 64 hours during plant shutdowns. From January to May, 1990, the Petitioner was absent a total of 46 hours, in addition to 124 hours of vacation leave without prior notice. After Sumner declined to hire the Petitioner, the HR Rep did not ask other hiring supervisors to consider the Petitioner for openings before considering external candidates. She did not tell the Petitioner that he had been rejected for the opening on or about July 12, 1991, or that his recall rights effectively had been terminated (in that she no longer was asking hiring supervisors to consider the Petitioner for openings before considering external candidates.) Nonetheless, the Petitioner was not surprised not to be recalled because he knew that employees who are laid off with recall rights are rarely recalled. The Petitioner acknowledges that he cannot prove, by direct evidence, that the Respondent discriminated against the Petitioner on the basis of a handicap or perceived handicap. Instead, the Petitioner argues that it should be inferred from the evidence that the Respondent, first, laid off the Petitioner instead of maintaining him on medical leave of absence and, second, did not recall him, in furtherance of plan to terminate his employment because of his handicap or perceived handicap. The inference the Petitioner seeks to have drawn was not proven by a preponderance of the evidence. First, as for the decision to lay the Petitioner off, there is no persuasive evidence that it would have been significantly more difficult ultimately to terminate the Petitioner's employment if the Petitioner had been maintained for the time being on medical leave of absence. Second, as to the decision not to recall the Petitioner, it was not proven that the Respondent did not recall the Petitioner for any reason other than the one articulated by the Respondent--namely, hiring supervisor Sumner rejected him for the reasons he gave. The Respondent is an equal opportunity employer and takes affirmative, proactive steps to recruit, hire and retain minorities and handicapped persons. It has completed required affirmative action plans, does adverse impact analyses on a semiannual basis, and advertises and recruits from agencies that deal with disabled persons. While the Respondent did not hire the Petitioner back after his extended medical leave of absence, it has hired others back after medical leaves of absence of 90 days or more. One employee was hired back after heart catheterization and coronary bypass surgery. Another was hired back after rupturing a disc and having back surgery. Both were returned to work with restrictions, after seeing the same consulting physician the Petitioner saw. Their medical conditions were at least as susceptible of being perceived as being handicaps as the Petitioner's. In both of those cases, the employee was able to be returned to the positions from which they had to take leave; they did not have to be laid off. Conversely, other employees who had not been on medical leave of absence but were laid off with recall rights in connection with a reduction in work force also have not been recalled. Three such employees who were laid off during the August, 1990, reduction in force were not even recommended to hiring supervisors for suitable positions that came open during the period of time in which their recall rights were effective, even though they were technically more qualified for the positions, based on their higher job grade levels, than the people ultimately hired for the jobs. The reason they were not recalled was that they had been laid off because their job performance ranked them at the bottom of the "totem pole" of employees subject to possible layoff in the reduction in force. The Petitioner survived the August, 1990, reduction in force because, based on need, no reduction was made in the receiving/inspection department. If there had been, the Petitioner would have been the first to be laid off due his rank at the bottom of the "totem pole" for the test technician positions in his department. The failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But none of those possibilities would constitute, nor do they prove, discrimination on the basis of handicap or perceived handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 15th day of September, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1224 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated to the extent not subordinate or unnecessary. Penultimate sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 10.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. As to second sentence, not necessarily all such employees see Myint on returning. It depends on the staff nurse's judgment as to the necessity. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Rejected as not proven that the policy itself "entitled" the Petitioner; rather, it was the Respondent's favorable interpretation of the policy. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20. As to the last sentence, Sumner gave some specifics at the time, but not many, as reflected in the Findings of Fact. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Accepted and incorporated to the extent not subordinate or unnecessary. (However, as to 22, at least the last time, everyone under Gonzalez got a "merit" increase, and the Petitioner got the smallest raise because his job performance ranked him the lowest on the "totem pole.") 24. First sentence, accepted and incorporated. The rest is rejected as subordinate to facts contrary to those found. 25.-27. In part accepted, but in part rejected. Rejected as not proven that the Petitioner was not considered for the July 12, 1991, opening. Sumner did consider the Petitioner and rejected him. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." But, if not "reasonable," their actions did not prove discrimination on the basis of handicap or perceived handicap. Rejected as not proven that Wilson "considered Richardson a potential problem employee because of his long illness." Rejected as not proven that the Respondent ever considered the Petitioner "unqualified." Rejected as not proven that the Respondent discriminated against the Petitioner on the basis of handicap or perceived handicap. Rejected in part as argument. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary. 28.-32. Accepted but generally subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. 8. Rejected as contrary to the greater weight of the evidence that his "performance" declined. Rather, the appraisal would indicate that the rate of improvement in his performance had declined. 9.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Generally, accepted and incorporated to the extent not subordinate or unnecessary. (The information imparted by the doctor was somewhat ambiguous.) 24.-31. Generally, accepted and incorporated to the extent not subordinate or unnecessary. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." And the Respondent's failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But, as found, those actions did not prove discrimination on the basis of handicap or perceived handicap. 32.-34. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ronald W. Fraley, Esquire Fraley & Fraley, P.A. 501 East Kennedy Boulevard, Suite 1225 Tampa, Florida 33602 Grant D. Peterson, Esquire Haynsworth, Baldwin, Johnson & Harper 1408 North Westshore Boulevard, Suite 1000 Tampa, Florida 33607 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
Findings Of Fact At all material times, Respondent was a career-service employee of Respondent. She served as a health service representative assigned to the Seminole County Public Health Unit. Her specific task was to investigate and follow up on contacts for sexually transmitted diseases. Petitioner's Employee Handbook, which Respondent received when she was hired, states: You may request annual leave for any purpose desired, but you must obtain Your supervisor's approval before taking annual leave. If an emergency develops, tell your supervisor of the emergency and ask for verbal approval to use annual leave. When you return to work, complete the leave request form for your supervisor's signature. The Handbook also Provides that certain employees are entitled to one eight-hour personal holiday "at a time which is mutually agreeable to the individual and the immediate supervisor." The local policy of the Seminole County Public Health Unit required each employee to request leave by filling out the back of a timesheet. In this manner, the employee would show the type of leave requested, the date and time of the leave, the employee's initials. The form provided spaces for the signature of the supervisor and the date described in detail in the Paragraph 5 below. The back of the timesheet states: "All Leave and Overtime must be requested and approved in advance." The Handbook requires advance approval of annual leave. Although the blanket statement on the back of the timesheet requires advance approval of all leave and overtime, the Seminole County Public Health Unit routinely did not require advance approval for all types of leave. For instance, sick leave, overtime, and annual leave for less than a few hours were normally approved after the fact. On at least two occasions, including one involving Respondent, annual leave for an entire day was also approved after it had beef taken. However, the Seminole County Public Health Unit normally requires advance approval of annual leave for a Period of one day or more. The instructions on the timesheet direct that the date next to the supervisor's signature indicate the date of the request for leave. Consistent with the varying policies governing leave, the date beside the supervisor's signature on the timesheet was used to show the date of approval of a request for annual leave and the date of the request for sick leave and certain other types of leave. By negative implication, the Handbook also requires written approval of annual leave for nonemergencies because it expressly permits "verbal approval" for annual leave for emergencies. There are no requirements in the Handbook or the timesheets for written approval of requests for other forms of leave, and the Seminole County Public Health Unit did not maintain enforceable policies to that effect. Two persons were authorized to approve requests of Respondent for annual leave. The first person was Charlotte Blades, who was the coordinator of the sexually transmitted disease program of the Seminole County Public Health Unit. Ms. Blades was Respondent's immediate supervisor The other person authorized to approve requests for annual leave was Bernice Duncan, who was the senior community health nurse of the Seminole County Public Health Unit and Ms. Blades' supervisor. In practice, the written approval of Ms. Blades could be revoked by Ms. Duncan. On one occasion, Respondent requested eight hours' annual leave to attend her son's high school graduation on June 9, 1989. Ms. Blades signed the timesheet on May 23, 1989. Between that date and the date of the leave, Ms. Duncan told Respondent that, although Ms. Blades had signed the timesheet, the leave was not approved. Ultimately, Respondent received approval for leave through 2:30 p.m., rather than 5:00 p.m., on the day of the graduation. In late July or early August, 1989, Respondent submitted a timesheet requesting 32 hours' annual leave from August 28-31, 1989. About one week later, before Ms. Blades or Ms. Duncan had acted on the request, Respondent changed the request to September 1, which was the Friday before Labor Day weekend, and September 13-14, 1989. In addition, she requested leave with pay for September 15, 1989, as her personal holiday. According to the timesheets, Ms. Blades approved the September 1 leave request on August 25, 1989, which was a Saturday. She assured Respondent that she would discuss with Ms. Duncan the remaining requests for leave. Respondent followed up with Ms. Blades several times, explaining that she wanted the leave to attend her son's graduation ceremonies from military basic training in South Carolina. Despite her assurances, Ms. Blades had not mentioned Respondent's request to Ms. Duncan before Ms. Blades became sick and missed work from September 6-9. On the second day of Ms. Blades' absence, Respondent took her request to Ms. Duncan, who said that she had not been aware of Respondent's request. Ms. Duncan told Respondent that Ms. Blades was on sick leave and did not respond further. The following day, Respondent spoke again with Ms. Duncan, who this time assured her that if Ms. Blades were not at work on Monday, September 11, Ms. Duncan would sign the timesheet approving the leave requested for September 13-15. Ms. Blades returned to work on Monday, September 11. When Respondent asked her in the morning to sign the timesheet, Ms. Blades refused to do so and told her that it had not yet been approved. Consistent with her prior conversations with Respondent, though, Ms. Blades did not say that the request had been disapproved. Respondent then left the office for much of the day. When she returned, Ms. Blades and Ms. Duncan were both out. The next day, Tuesday, September 12, Ms. Blades spoke with Respondent, but still declined to say whether the request was approved or rejected. She continued to say merely that the request had not yet been approved. Tuesday afternoon, Respondent told a coworker to tell Ms. Blades that Respondent was going to South Carolina and would be back the following Monday morning. While still in town, Respondent telephoned both supervisors shortly after 8:00 a.m. on Wednesday, but they had not arrived at work yet. Respondent asked the receptionist to remind Ms. Blades that Respondent had gone to South Carolina and would return the following Monday morning. Both messages were delivered to Ms. Blades, who relayed them to Ms. Duncan. Respondent then departed for South Carolina, where she remained through at least September 15. At the time of her departure, Respondent knew that her request for annual leave had not been approved and that she was taking unauthorized annual leave. When she arrived back in the office on September 18, Respondent received a copy of a letter dated September 15 that had been mailed to her the prior Friday. The letter states that Respondent had been separated from State service for abandonment of position, effective at the close of business on September 15, 1989. The second paragraph of the letter contains material misstatements of fact. It states that Respondent had been advised that, due to the present work situation, her leave could not be approved. The letter also states that she did not contact her supervisor that she would be absent. No one ever advised Respondent that her leave could not be approved or in fact was rejected until after her return from South Carolina. Also, Respondent informed both supervisors, directly and through third parties, that she would be absent, where she was going, why, and when she would return. However, she did not contact them during the three-day absence. Concerning the request for leave for a personal holiday, neither Ms. Blades nor Ms. Duncan ever informed Respondent that the date was inconvenient. Under the circumstances, Respondent could reasonably infer that the date was agreeable with Ms. Blades. At no time did Respondent intend to abandon her career-service position. The facts do not support a reasonable inference that Respondent abandoned her job during the three days in question.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Administration enter a Final Order finding that Respondent has not abandoned her position in Career Service employment with the State of Florida. ENTERED this 28th day of February, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990. COPIES FURNISHED: Linda L. Parkinson Attorney Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 701 Orlando, FL 32801 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Alva J. Barfield 1010 Locust Avenue Sanford, FL 32771
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on June 17, 1998.
Findings Of Fact Petitioner was employed as a freezer-puller, by Respondent, a wholesaler of natural and specialty food products. The quality of Petitioner's work for Respondent is not at issue as Respondent acknowledged that Petitioner was a good worker and always got good evaluations. Around January 8, 1997, Petitioner requested and was granted leave under the Family Medical Leave Act. The request stemmed from his wife's terminal illness and his need to take care of her. Mrs. Gilliam passed away on February 15, 1997. On February 28, 1997, Petitioner's primary doctor wrote a note to Respondent that Petitioner "is excused from work this week and the next two weeks for medical reasons." On March 14, 1997, Petitioner's doctor wrote a letter to Respondent stating that Petitioner was suffering from complications of grief reaction. The letter recommended that Petitioner be placed on a ground level job for the next six months "until the severe impact of this grief reaction has a chance to lose it's sharpness and severity." It did not say that Petitioner could not return to work. On March 25, 1997, Petitioner's doctor wrote the following note on a paper entitled, "Certificate to Return to School or Work": "Pt. suffering from grief reaction. Therapist to see pt. on 4-3-97. Work status dependent on counseling progress." On the same date, Petitioner's doctor signed an insurance claim form which also stated that Petitioner's work status depends on what the therapist recommends. On April 3, 1997, Petitioner's doctor wrote a note which stated: To Whom it May Concern, Mr. Gilliam is presently in counseling. He has an appt. on April 17th & will have several consecutive visits. He is also attending a support group. Depending on his progress, he may be able to return to work mid-May. Thank you for your kind patience. On April 14, 1997, the insurance company which issued the group disability policy covering Respondent's employees wrote to Petitioner notifying him that benefits beyond April 3, 1997, were denied and giving him a time frame in which he could request a review of the claim denial. The letter stated in pertinent part, "You have been disabled for a grief reaction due to the death of your wife. Although we sympathize with your loss, we now feel that the grief reaction process is no longer a disabling condition." On May 5, 1997, Kim Hamrick, who at the time was Respondent's director of human resources but who no longer works for Respondent, wrote to Petitioner informing him that he had exhausted all twelve weeks of his family medical leave. The letter further stated: Once you exhaust all of your leave and you do not [sic] to return to work the company has a legal right to fill your position as a Puller/Stocker in the Freezer. Once you have been released to return to work we will look at placing you in another position within the organization. If you wish to continue your medical, dental and vision insurance at this time, you will still be required to pay your portion by the tenth of the month or coverage will be cancelled. Please feel free to contact me if you need any assistance. Keep me informed as to your work status. There was an unfortunate lack of communication between the parties after this point. In November or December of 1997, Petitioner called Glynda Copeland who was the employee of Respondent now handling this situation, asking about his insurance enrollment form for 1998. This phone call resulted in a meeting between Petitioner and Ms. Copeland. Petitioner was under the impression that he was still on a leave of absence. Ms. Copeland informed him that he had been terminated. The extent of the lack of communication between the parties was evidenced at hearing when it became clear that had Petitioner informed Respondent that he wanted to work and wanted his job back, Respondent would have allowed him to resume working. However, Petitioner was so devastated that he had been terminated that he did not ask to be able to resume working for Respondent. Petitioner maintains that he submitted all requested medical documentation to Respondent. However, the documents from physicians submitted by Petitioner to Respondent were insufficient to support the proposition that Petitioner was unable to work for medical reasons beyond April of 1997. Specifically, no doctor wrote that he was unable to work for medical reasons after April 1997.1 After learning that he had been terminated from employment with Respondent, Petitioner found other employment.
Recommendation Based upon the 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 Charge of Discrimination. DONE AND ENTERED this 16th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 16th day of April, 2001.
The Issue Whether the Respondent discriminated against the Petitioner on the basis of disability, in violation of the Florida Civil Rights Act of 1992, Section 760.10 et seq., Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rivero was first employed by Miami-Dade County in November 1984, apparently as a security guard with the Metropolitan Dade County Park and Recreation Department. He took a physical examination and informed the doctor conducting the examination that he suffered from cluster migraine headaches and that they occurred about six to eight times each month. Mr. Rivero subsequently left his employment with Miami-Dade County, but was re-hired in September 1986. At the time he was re-hired, he advised the recruiting officer that he suffered from migraine headaches. Mr. Rivero was employed by the Metropolitan Dade County Park and Recreation Department from September 1986 until August 10, 1999. From January 1996 through May 1999, Mr. Rivero was employed as a park ranger by the Metropolitan Dade County Park and Recreation Department, and he worked at the Metrozoo. His job responsibilities included patrolling areas of the zoo, assisting in emergencies, providing information to patrons, and providing for the safety of patrons and security for Miami-Dade County property. Because of his migraine headaches, Mr. Rivero often was absent from work, and he was advised several times by his supervisors, in documents entitled Record of Counseling, that the frequency of his absences was unacceptable. The most recent Record of Counseling submitted at the hearing by Mr. Rivero was dated November 24, 1997. On January 10, 1995, Mr. Rivero consulted with Ray Lopez, M.D., a neurologist, about his recurring migraine headaches, which had become more intense and frequent after Mr. Rivero was involved in an automobile accident in November 1994. Dr. Lopez diagnosed Mr. Rivero with migraine headaches, with post-traumatic, likely cervicogenic, intensification. Dr. Lopez treated Mr. Rivero for his headaches from January 1995 until at least December 1999. During this time, Mr. Rivero was seen by Dr. Lopez approximately twice a month. Between 1995 and 1999, Mr. Rivero's migraine headaches continued to intensify in severity and frequency. By January 1999, Mr. Rivero found it increasingly more difficult to carry out his duties as a park ranger at Miami-Dade County's Metrozoo when he had a headache, and his headaches were occurring almost daily. Between January 1999 and March 1, 1999, Dr. Lopez wrote several notes documenting Mr. Rivero's inability to work on specified days because of the headaches. Effective March 29, 1999, Mr. Rivero's work schedule was cut from 39 hours per week to 16 hours per week. Mr. Rivero had previously worked Saturdays through Wednesdays, with Thursdays and Fridays off. As a result of the change, Mr. Rivero was assigned to work on Saturdays and Sundays from 10:00 a.m. to 6:30 p.m. Mr. Rivero last reported for work at the Metrozoo on or about May 22, 1999. Mr. Rivero was unable to continue working because of the frequency and severity of his headaches. Nonetheless, Mr. Rivero called the Metrozoo office regularly between May 22, 1999, and July 18, 1999, to report that he was absent because of illness. He did not, however, have any intention of returning to work after May 1999 because he believed he could no longer perform the duties required of a park ranger.3 In July 1999, Diane Condon, the personnel manager for Metropolitan Dade County Park and Recreation Department, was told by Mr. Rivero's supervisor at the Metrozoo that Mr. Rivero had been absent for quite some time, that he had exhausted his paid leave time, and that the reason for his absences was medical. It was suggested to Ms. Congdon that Mr. Rivero be offered leave under the Family Medical Leave Act of 1993. In a letter dated July 12, 1999, from John Aligood, Chief of the Human Resources Division of the Metropolitan Dade County Park and Recreation Department, Mr. Rivero was notified that he had been preliminarily granted family/medical leave but that he would have to present a certification from his doctor within 15 days of the date he received the letter in order for his eligibility for such leave to be finally determined. Mr. Rivero was advised in the July 12, 1999, letter that continuation of the leave was contingent on receipt of medical certification from his doctor; that he must furnish the certification within 15 days after he received the letter; and that "[f]ailure to do so will result in relinquishing FMLA leave; you will then be required to return to the full duties of your job or resign, or you will be terminated for abandonment of position." The July 12, 1999, letter was sent to Mr. Rivero via certified mail, and he picked it up on July 22, 1999. Mr. Rivero contacted Ms. Congdon on July 22, 1999, and told her that Dr. Lopez was unavailable at that time to complete the medical certification. Ms. Congdon advised him that the medical certification was required for the family/medical leave to continue.4 In a letter dated August 10, 1999, which was prepared by Ms. Congdon, Mr. Rivero was advised that his employment had been terminated for abandonment of position because he had failed to provide the medical certification required for continuation of family/medical leave by July 26, 1999, which was 15 days after July 12, 1999.5 Summary The evidence presented by Mr. Rivero is insufficient to establish with the requisite degree of certainty that his employment as a park ranger with the Metropolitan Dade County Park and Recreation Department was terminated because of his medical condition. Mr. Rivero himself testified that he believed he was unable to perform the duties required by his job as of May 1999 because of his migraine headaches and that he had no intention of returning to work subsequent to May 1999. The evidence presented by Mr. Rivero is sufficient to support the inference that, prior to July 12, 1999, Mr. Rivero did not advise his supervisor at the Metrozoo or anyone else in the Metropolitan Dade County Park and Recreation Department that he did not intend to return to work after the end of May 1999. His being placed preliminarily on family/medical leave as of July 12, 1999, did not harm Mr. Rivero but, rather, resulted in his health benefits being continued until his termination on August 10, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Ruben Rivero. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2002.
The Issue The issue in this case is whether Petitioner was subjected to discrimination by retaliation in violation of the Florida Civil Rights Act (FCRA), sections 760.01-760.11, Florida Statutes.1/
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Background Petitioner, Victoria Carter (Petitioner or Ms. Carter), began her employment with AT&T on July 28, 2008, as a Directory Advertising Sales Representative (DASR). As a DASR, it was Ms. Carter’s responsibility to grow advertisement sales to AT&T’s current customer base as well as sell advertising to new customers. Prior to the DASR position, Petitioner's 20-year employment career had been entirely in sales. Petitioner's initial training with AT&T consisted of a three-month program in Atlanta, Georgia, called the University of Excellence. Petitioner successfully completed this training. AT&T holds four advertising sales “campaigns” per year. The objective of each campaign is to sell advertisements and create new business in a specified geographic area. Each campaign has three to four teams, which consist of six to eleven DASRs. Each team is led by an area sales manager (ASM). Following her completion of training in Atlanta, Petitioner went to work in sales campaigns from October 2008, through the summer of 2009. These campaigns focused on advertising sales to customers in the Gainesville, Jacksonville, Jacksonville Beach, and Palatka, Florida, markets. Petitioner was successful as a DASR early on in her career with AT&T. She landed a large account, Emergency Dental, which elevated her into the President’s Club, in recognition of outstanding sales. Petitioner received congratulatory letters from the Southeast Regional Vice President of Sales for AT&T in August 2009, for exceeding her sales objectives on the Jacksonville and Jacksonville Beach campaigns. Also in 2009, Petitioner was awarded a Perfect Customer Quality Award (Silver Ranking) which was signed by several high- ranking AT&T executives, including Regional Sales Manager Matt Currey. Petitioner's Employment Under ASM Morris In November 2009, Petitioner was switched to the Jacksonville campaign, which was led by James "Al" Morris. Mr. Morris selected Petitioner to be on his team because of her successful sales record. Mr. Morris was Petitioner’s direct supervisor from November 2009, until the end of the Jacksonville campaign in June 2010. In November 2009, Mr. Morris advised Petitioner (and the other DASRs) that due to the rollout of new computer software and the attendant training they would not be permitted to go into the field to sell to existing customers until late January 2010. Instead, the team sales reps were only to sell to non-billing (new) accounts from November 2009, through January 2010. From the outset of their relationship, Mr. Morris observed that Petitioner did not want to follow AT&T policies and procedures. Moreover, Petitioner did not demonstrate a willingness to be self-sufficient, or a desire to learn the information systems to effectively do her job. Mr. Morris observed that Ms. Carter wanted other DASRs to do her work for her, including Elliott Hartman. Mr. Hartman, who was on an entirely different team than Petitioner and did not report to Mr. Morris, would on occasion enter Petitioner’s work into the system for her. This was a clear violation of AT&T policy as DASRs were required to process their own paperwork. Consistent with this policy Mr. Morris did not permit any of his team members, much less someone not on his team, to key in information for other DASRs. Accordingly, Mr. Morris instructed Mr. Hartman not to enter in Petitioner’s work for her. In December 2009, Petitioner sought and obtained a restraining order against Terry Hartman, Elliott Hartman's wife. As stated by Petitioner in the Charge of Discrimination she filed with the FCHR/EEOC on December 31, 2009, the restraining order was necessary because: In approximately May 2009, a coworker's wife began stalking me and making delusional and completely false accusations pertaining to my having more than a working relationship with her husband. In late November or early December of 2009, the situation had become so stressful and frightening that I was forced to seek a restraining order against the woman. (Petitioner's Ex. 3) Notwithstanding the above statement, made under penalty of perjury, Petitioner admitted at hearing to having had a sexual relationship with Mr. Hartman that lasted approximately one year. Prior to the issuance of the restraining order Petitioner had informed the AT&T human relations department that she was being stalked by Mrs. Hartman. On the day the restraining order was issued, December 3, 2009, Petitioner also spoke with the General Manager, Matt Currey, and Mr. Morris about the situation with the co-workers wife. Following her conversation with Mr. Morris and Mr. Currey on December 3, 2009, Petitioner perceived that she was suddenly treated very differently by Mr. Morris. For example, during the campaign review held that same day, Mr. Morris "was basically yelling" at Petitioner, and a co-worker was instructed not to assist Petitioner with entering information into the new computer system. According to Petitioner, in the middle of December 2009, Mr. Morris and Mr. Currey also yelled at Petitioner over the telephone. During this communication, she was directed to immediately return to the office for the “YP Connect” training test that she had previously scheduled to take after her Christmas vacation. Petitioner informed them that she could not immediately return to the office because her automobile had a flat tire. In response, Mr. Morris and Mr. Currey directed Petitioner to take a picture of the flat tire to corroborate her story. However, since Petitioner did not have a camera, upon her return to the office she presented a receipt for the tire repair as proof. Petitioner ultimately completed the YP Connect test on January 4, 2010, and received a score of D+. Of the 31 DASR's who had taken the test as of January 4, 2010, 15 (nearly 50%) received scores of D+ or lower. Of the 15 DASRs who received a score of D+ or lower, 11 were males. There is no credible evidence in this record that Petitioner's test was graded in an unfair or discriminatory manner. As part of the Jacksonville campaign, Emergency Dental, the large account that helped put Petitioner in the President’s Club, became one of Ms. Carter’s assigned accounts. According to the testimony of Mr. Morris, which is credible, Petitioner provided Emergency Dental terrible customer service. As a result, the client became very upset with Petitioner because she failed to meet his requests or follow-up with him. Emergency Dental even requested that Ms. Carter not handle their account, and accordingly, Petitioner’s ASM, Mr. Morris, had to service the account. Emergency Dental ultimately received a very large adjustment for Petitioner’s failure to process their paperwork properly and for errors in its ads. Petitioner also had issues using General Manager Overrides (GMOs) as a sales tool. GMOs are discounts on advertising pricing that can only be offered with manager approval, and were to be used sparingly. DASRs are not permitted to offer discounts prior to manager approval. Mr. Morris approved all but two of Petitioner’s GMOs. The first involved Concrete Advantage, wherein Ms. Carter called Mr. Morris to approve a specific discount, which he did. However, when Petitioner arrived back at the office, it became apparent that Ms. Carter had offered Concrete Advantage a larger, unapproved discount, which was outside of Mr. Morris's approval authority. The second GMO denial occurred with Anderson Insurance, wherein Petitioner took it upon herself to offer an 81 percent discount off of the display ad and a total discount of 65 percent. Again, this discount was beyond Mr. Morris’ authority and required vice president approval before a DASR could offer it. However, Petitioner nonetheless offered the discounts before receiving the necessary approval. Notwithstanding Petitioner's unauthorized discount offers, both of these GMOs were eventually approved by Mr. Currey in order to maintain good client relations. Petitioner's Charge of Discrimination dated December 31, 2009, was mailed to AT&T on January 14, 2010. In her Charge, Petitioner alleged that she was treated differently after telling Mr. Morris about the restraining order against Ms. Hartman. Specifically, Petitioner alleged: (1) Mr. Morris would not allow Mr. Hartman to assist with closing accounts; (2) her requested GMOs were not approved; and (3) Mr. Morris requested that Carter return to the office to take the YP Connect test, but Petitioner had a flat tire and Mr. Morris asked that she take a picture of the flat tire. All three of these allegations relate to incidents that occurred prior to December 31, 2009. On January 7, 2010, Petitioner lodged an internal complaint with AT&T’s ethics hot line. In the complaint Petitioner alleged that she was being “subjected to constant criticism, micro-management and intense scrutiny of sales contracts by managers.” Petitioner also alleged that she was being treated differently from her male co-workers, including that she was “the only person required to take the YP Connect test immediately, even though there were other team members, including Premise Representative Scott Trimbull, and Elliot Hartman, who had not yet completed the test.”2/ Mr. Morris and Mr. Currey were specifically named in Petitioner’s internal ethics complaint. Notably, this complaint also included the statement that Petitioner was being stalked by Mrs. Hartman, who was making “delusional statements” about a perceived relationship between Petitioner and Mr. Hartman. The internal complaint was investigated by AT&T and closed as unsubstantiated. The report found that the managers charged in the complaint (Morris and Currey) were “performing job responsibilities ensuring policies and procedures are not being violated.” (Petitioner's Ex. 2) According to Petitioner, following her FCHR/EEOC charge and her internal ethics complaint, Petitioner’s work continued to be micromanaged and scrutinized. In addition, Mr. Morris would speak with Petitioner in a very hostile tone of voice, and she would sometimes walk out of his office shaking, distraught and taken aback by his behavior. According to Petitioner, Mr. Morris’ demeanor was very angry and “very, very hostile, talking down to [Petitioner].” On one occasion Diane Smith, who worked with Petitioner and Mr. Morris in the same office, observed Mr. Morris calling Petitioner into his office and being vocal and condescending with her. Ms. Smith also observed that Petitioner exited the office and appeared “pretty shaken up.” On February 19, 2010, Petitioner filed a grievance with her union, Communications Workers of America (CWA) Local 3106, alleging she was being subjected to a hostile work environment. No specific factual allegations were included with the grievance, just that Petitioner was being subjected to “discrimination, harassment and inequity of treatment.” However, at hearing Petitioner testified that she filed the grievance because she disagreed with Mr. Morris’ decision not to approve a GMO for two accounts, Concrete Advantage and Anderson Insurance. The grievance was later retracted by Petitioner “per agreement between Matt Currey, GM and Elliott Hartman, CWA.” On May 12, 2010, Petitioner filed another grievance with her union because she had received a written warning for failing to follow Respondent's “reporting out” policy. Petitioner filed a final grievance to receive pay for attending a prior grievance meeting. In response to this grievance Mr. Miller agreed to pay Petitioner and all other affected DASRs for their time at the meeting. After the conclusion of the Jacksonville campaign in June 2010, Petitioner was not supervised by Mr. Morris again. Petitioner's Employment Under ASM Amy Topnick Following the Jacksonville campaign Petitioner’s next assignment was the Palatka campaign. ASM Amy Topnick selected Petitioner for the Palatka campaign because Petitioner was a former peer and friend. Ms. Topnick and Petitioner started as DASRs at approximately the same time in 2008. Ms. Topnick did not speak with Mr. Morris about Petitioner before selecting her for the campaign, and Ms. Topnick was unaware of Petitioner’s December 31, 2009, Charge of Discrimination. After the Palatka campaign began, Ms. Topnick spoke with Mr. Morris about her team's composition, including Petitioner. Mr. Morris told Ms. Topnick that Petitioner had struggled in her position during the Jacksonville campaign and needed to be monitored for accuracy. Following this conversation with Mr. Morris, Ms. Topnick explained to Petitioner that this campaign would be Petitioner’s chance to “redeem herself” from her past problems with the computer system and with her sales. The Palatka campaign lasted from June 18, 2010, until August 3, 2010. According to Ms. Topnick's testimony, which is credible, Petitioner’s performance during the Palatka campaign was “dismal, at best.” Specifically, Petitioner did not handle her accounts; she did not keep track with the pacing of her accounts; and she did not follow-up with her clients. In addition, Ms. Topnick discovered that Petitioner did not know the pricing plan; was unable to maneuver through Respondent’s computer applications in order to perform her job; failed to prepare for her accounts; failed to set appointments on a timely basis; and failed to properly answer customer queries. As a result of these serious shortcomings, Ms. Topnick had to handle a majority of Petitioner’s accounts. Although Petitioner received the credit for her accounts during the Palatka campaign, Ms. Topnick credibly testified that she, not Ms. Carter, actually handled the accounts. In August 2010, Albert Miller replaced Mr. Currey as Petitioner’s General Manager. Petitioner does not allege that Mr. Miller discriminated or retaliated against her. Following the Palatka campaign, Petitioner worked on the Gainesville campaign and continued to report to Ms. Topnick. The Gainesville campaign lasted until September 2010. In September 2010, Ms. Topnick had issues with Petitioner calling out without following the proper procedures. Consistent with AT&T procedure, Ms. Topnick advised the Human Relations department of the problem she was having with Petitioner not complying with company procedure. In response, Petitioner claimed she was never told of the policy. No discipline was imposed on Petitioner as a result of this incident. Ms. Topnick did not treat Petitioner differently than anyone else on her team. Ms. Topnick simply expected Ms. Carter to follow company procedures. Petitioner did not file an ethics complaint against Ms. Topnick during the time Ms. Topnick supervised her. During the Palatka and Gainesville campaigns, Ms. Topnick was not aware that Petitioner had filed a Charge of Discrimination against Respondent. Furthermore, Ms. Topnick was unaware that Petitioner had filed several grievances involving Mr. Currey and Mr. Morris. Ms. Topnick credibly testified that no one, including Mr. Morris, Mr. Currey, or Mr. Miller ever suggested to her that she should retaliate against Petitioner in any way. The credible evidence of record does not support a finding that Petitioner was targeted for retaliation, or that she was otherwise discriminated against. There is no credible evidence that Petitioner received unfavorable treatment based upon her gender or any other prohibited basis, or that other employees received more favorable treatment. To the contrary, the evidence established that Petitioner's behavior and poor work performance merited the sometimes harsh and directly critical treatment and intense scrutiny she received from her managers. Petitioner’s Leave of Absence and Failure to Return to Work. Beginning in May 2010, Petitioner developed health issues that progressively worsened. Specifically, Petitioner experienced migraine headaches and backaches that Petitioner attributed to stress at work. In an attempt to address these health issues, Petitioner sought counseling through Respondent’s Employee Assistance Program. Petitioner's last day at work was October 6, 2010. Due to the health problems she was experiencing, Petitioner was placed on short-term disability effective October 8, 2010. On January 7, 2011, Petitioner filed a second complaint with the AT&T Human Relations Department, this time alleging that Ms. Topnick had made inappropriate comments about Carter’s disability leave. At hearing, Ms. Topnick credibly denied ever making such comments. Petitioner’s short-term disability leave request was denied in January 2011, and Petitioner was given notice that she would have to reapply. On January 26, 2011, Petitioner filed her application for short-term disability appeal leave of absence, and on February 11, 2011, Petitioner was granted a 250-day administrative leave of absence, also known as short-term disability appeal leave. On July 28, 2011, Stacy Korzekwa, leave of absence administrator, extended Carter’s short-term disability leave of absence through September 15, 2011. See Respondent’s Ex. 27. In an email to Carter, Ms. Korzeka explained: Vickie: Per our conversation this afternoon, I have extended the STD Appeal Leave of Absence (LOA) through 9/15/11 to allow additional time for the decision of your 1st appeal with the AT&T Integrated Disability Service Center (IDSC). As I explained, this leave will continue to protect your absence while you go through the appeal process. The leave has a maximum duration of 450 days. I typically grant 250 days to allow the employee to complete their 1st appeal. The additional 200 days is granted when the employee requests an extension of the LOA while they complete the 2nd appeal (if necessary). Since the IDSC may not be able to render a decision on the 1st appeal for another 45 days, I’m extending the end date of your leave from 8/30/11 to 9/15/11 (approval email attached). Please note that the end date is just an estimate. You have a responsibility to mail a new LOA Application to me once the appeal decision is made. Once the IDSC renders a decision about your disability claim, they will mail you a letter regarding the decision. If any portion of your disability benefit is still denied, they will include another LOA application titled Exhibit A2: Application for Extension of STD Appeal Leave of Absence. You have 20 days from the date of that letter to mail me the new LOA Application if you want to remain on the STD Appeal LOA while you complete your 2nd appeal. I would process the application and give you the remaining balance (up to 450 days) for the leave. Please let me know if you have any questions. Stacy Korzekwa Leaves of Absence Administrator At hearing, Petitioner acknowledged that she received this email. Petitioner also acknowledged that she missed the deadline to file an application for a second leave of absence. Despite knowing she had missed the deadline, Petitioner nonetheless applied for a short-term disability leave of absence on September 7, 2011, stating: “I would like to request an extension on my Leave of Absence from AT&T at this time. I understand I have missed the deadline of 20 days from 8/5/11 when my attorney and I received the Exhibit A2 notice.” On September 16, 2011, Ms. Korzekwa sent Petitioner an email notifying her of the denial of her leave of absence appeal stating: Victoria: Attached is the determination email for the request for an extension of the STD Appeal LOA. One of the requirements for the leave is that the LOA application must be postmarked within 20 days of the denial letter date at the top of the form. Your form was postmarked effective 9/07/2011 and the denial uphold letter date was 8/05/2011. Since Petitioner missed the leave of absence extension request deadline, General Manager Miller notified Petitioner on September 14, 2011, by letter that she would need to return to work not later than September 19, 2011, or face “disciplinary action up to and including termination.” Despite the opportunity to return to work, Petitioner informed Mr. Miller that she was not able to return to work full-time. Inasmuch as Petitioner did not return to work, Respondent terminated Petitioner’s employment on September 19, 2011. As of the date of the hearing, Petitioner had not been employed since being terminated by AT&T. Petitioner explained that she had not yet been released by her doctors to return to work full-time, although her doctors “may have released me to work on a part-time basis.” Mr. Morris never had any discussions with Ms. Korzekwa about Petitioner or her Charge of Discrimination. One day after her termination from Respondent, on September 20, 2011, Petitioner filed the Charge of Discrimination at issue herein. The only allegation in this Charge was retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Victoria Carter. DONE AND ENTERED this 13th day of February, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 13th day of February, 2013.
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 The issue is whether Petitioner is entitled to recover salary that it claims that it overpaid Respondent.
Findings Of Fact Petitioner employs Respondent as a detention care worker in a juvenile detention center in Miami. She is presently classified as a Senior Juvenile Detention Officer. Respondent's highest education is a high school diploma. She has worked 27 years for Petitioner and its predecessor agency, the Department of Health and Rehabilitative Services. In early January 2004, Respondent was hospitalized at least a couple of times for surgery. Upon her release from the hospital, Respondent's physician directed her to rest and not to return to work. She remained under these doctor orders, and thus out of work, continuously until April 29, 2004, when Respondent returned to work. Respondent exhausted her sick and annual leave prior to returning to work. The sole issue in this case is whether Respondent and her coworkers effectively completed transfers of their sick leave to her. Due to its payroll administration procedures, Petitioner paid Respondent her normal salary for a period of time for which Petitioner did not work and had no remaining sick or annual leave, so, absent an effective transfer of sick leave from coworkers, Respondent would have received overpayments during this time. The salary payments in dispute are $409.70 for the pay period ending March 25, 2004; $1399.71 for the pay period ending April 8, 2004; $1477.53 for the pay period ending April 22, 2004; and $518.08 for the pay period ending May 6, 2004. These payments total $3805.02. Petitioner has adopted a policy governing the transfer of sick leave between employees. Petitioner Policy 1002.03, Part III.F, Procedures for Sick Leave Transfer (Sick Leave Transfer Policy), sets forth the procedures applicable to leave donors, leave recipients, and Petitioner's Bureau of Personnel. With respect to the leave recipient, Sick Leave Transfer Policy provides: In order to receive donation of sick leave, the employee (recipient) must complete the Interagency Sick Leave Transfer Request (Request to Use) Form (Attachment 2) and submit it to the Bureau of Personnel on or before the pay period the employee is eligible to use the leave. The receiving employee (recipient) must submit medical certification to the Bureau of Personnel of the continued illness of the employee and the inability to return to work, by completing the Sick Leave Transfer Request (Request to Use) Form. The Request to Use Form is incorporated into the Sick Leave Transfer Policy. It is a one-page preprinted form consisting of two parts. Entitled "Request to Use Donated Sick Leave," Part I is a signed, dated statement from the employee that states the date on which the absence began or will begin and adds: I certify that I have suffered an illness, accident or injury. I further certify that I have expended all my personal leave credits and this is to request use of donated sick leave hours to cover my absence due to my current personal illness, accident or injury. I authorize my employer to use my name and release a general description of the medical circumstances in order to determine my eligibility in accessing this benefit. Entitled "Medical Documentation," Part II of the Request to Use Form comprises two subparts. The first part of the form consists of a statement from the employee that he or she is seeking donated sick leave and authorizes any medical practitioner to complete Part II and answer any questions concerning the employee's eligibility. The second part of Part II of the Request To Use Form follows a line stating: "To Be Completed by the Treating Medical Practitioner Only." The information to be supplied by the practitioner is identifying information, the "date of which patient was first examined for current condition," the "date patient is expected to recover or be released to duty," and any restrictions imposed upon the patient's release to duty. The last line of Part II states in boldface: "Return this form (marked confidential) to:" Instructions for Authorized Use of this Form: In order for the patient to comply with eligibility requirements, the treating medical practitioner must complete this form and return it to the patient's employer directly or via the patient. In smaller print, immediately following the last statement, the Request to Use Form states: "Return to Bureau of Personnel, Benefits, 2737 Centerview Drive, Tallahassee, FL 32399-3100." This case turns on whether Petitioner timely received the Request to Use Form. Petitioner does not dispute that it timely received sufficient Request To Donate Forms to cover the amount of the claimed salary overpayments. On March 31, 2004, Respondent faxed a seven-page package of documents to George Sumpter, who was Petitioner's Sick Leave Donations Coordinator in Petitioner's Benefits group in the Bureau of Personnel in Tallahassee. This package consisted of executed Request to Donate Forms. Respondent faxed these forms to 850-921-6700. On April 30, 2004, the day after she returned to work, Respondent faxed a 12-page package of documents to Mr. Sumpter. This package included an executed Request to Use Form and medical certification. Respondent's Bureau of Personnel thus received sufficient documentation to process the sick leave transfers during the pay period that ended May 6, 2004, as the policy requires that the documentation be submitted "on or before the [subject] pay period." Respondent faxed an executed Request to Use Form in late February or early March. She faxed the materials to the lone Bureau of Personnel liaison present in the Miami facility at which Respondent worked. Respondent believed either that submitting the materials to the Miami liaison would suffice or, if not, the Miami liaison would forward them to where they needed to go. It is difficult to determine what happened to these forms. No one in the Bureau of Personnel was very helpful to Respondent, who was able to obtain copies of the Request to Donate and Request to Use forms from a friend in the Department of Education. Somehow, while still recuperating from surgery and ill health, Respondent was able to obtain a copy of a list of telephone and fax numbers for various groups within Petitioner's Bureau of Personnel in Tallahassee, but the list was old and did not have Mr. Sumpter's name on it, nor did the list clearly indicate which fax number to use for submitting the Request to Use and Request to Donate forms. Learning that Mr. Sumpter claimed not to have received the first package, Respondent refaxed the package to him in March. At some point, Mr. Sumpter acknowledged that he had received the Request to Use Form package, but he told Respondent that he had received it too late for her to be able to use any of the donated sick leave. When Respondent persisted in asking that he allow her to use the donated sick leave, Mr. Sumpter told her to file a complaint with Petitioner's Inspector General's Office. Respondent contacted the Inspector General's Office, where no one was able to help her. Mr. Sumpter did not testify at the hearing. However, a document maintained in the Bureau of Personnel files discloses that Petitioner had received the Request to Use Form on April 1, 2004. However, the same form states that Petitioner did not receive the "Medical Documentation Form" until May 28, 2004. Prior to April 1, 2004, Respondent repeatedly sent faxes to Bureau of Personnel representatives in Miami and Tallahassee. Included in these faxes were all of the documentation necessary to process the sick leave transfers from the donors to Respondent. During the period in question, Petitioner was undergoing significant employee turnover. On this record, it is more likely than not that Respondent timely submitted, by no later than the first pay period in question in this case, all of the duly executed documentation necessary to effect a transfer of the donated sick leave to her.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing its claim of salary overpayment to Respondent. DONE AND ENTERED this 26th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2004. COPIES FURNISHED: Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Linville Apkins Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Elizabeth Judd, Qualified Representative 99 Northwest 183rd Street, Suite 224 Miami Gardens, Florida 33169 Yvette Demeritte 1730 Northwest 1st Court, Apartment 7 Miami, Florida 33136
The Issue The issue in this case is whether the Respondent terminated Petitioner's employment on the basis of a perceived disability, in violation of Section 760.10, Florida Statutes (2004),2 the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Seiden's Relevant Employment. Petitioner Jane Seiden is an individual who was employed by the Florida Department of Corrections at Broward Correctional Institute (hereinafter referred to as "BCI") from December 1988 until the end of March 1999 as a licensed practical nurse. From April 1, 1999, until October 7, 2001, Ms. Seiden continued to work at BCI, but was employed by a private business, Prison Health Services. On October 8, 2001, Respondent Wexford Health Sources, Inc. (hereinafter referred to as "Wexford") took over responsibility for providing medical services at BCI. Ms. Seiden became an employee of Wexford as of that date, after having received a letter dated June 20, 2001, signed by Wendy Mildner, as Wexford's Director of Human Resources/Risk Management, offering her employment with Wexford effective October 8th. Ms. Seiden accepted the offer of employment on June 25, 2001. Wexford is a provider of health care services to correctional facilities, including BCI. Throughout Ms. Seiden's employment at BCI, she received excellent work performance reviews. Wexford's Leave Policies. Wexford's policies concerning employee "Family and Medical Leave" at the time of Ms. Seiden's initial employment with Wexford were contained in the Wexford Health Sources, Inc. Employee Handbook (Respondent's Exhibit 9) (hereinafter referred to as the "Employee Handbook"). The Family and Medical Leave policy was, in relevant part, as follows: Employees who are eligible for Family and Medical Leave may take up to 12 weeks of unpaid, job protected leave. Employees are eligible if they have worked for at least one year, and for 1,256 hours over the previous 12 months. Reasons for taking unpaid leave are: . . . . ? for a serious health condition that makes the employee unable to perform the employee's job. . . . . The Wexford Employee Handbook, Revised 09/01/04 (Petitioner's Exhibit 9) (hereinafter referred to as the "Revised Employee Handbook"), established policies governing "Time Off" in Section 5. Pursuant to Policy 5.3, all employees are allowed to apply for a leave of absence for medical reasons. The period of the absence is limited, however, to 12 weeks, consistent with the Family and Medical Leave Act (hereinafter referred to as the "FMLA"), unless the employee is eligible for "income replacement benefits," for example for a short-term disability pursuant to Section 4.5, which provides the following: Wexford provides some income protection for employees who are unable to work for an extended period of time due to illness or injury through its Short-Term Disability Leave (STD) insurance program. You are eligible for STD benefits if: You Have completed one year of continuous service You work a minimum of 30 hours per week and are covered by health insurance. Eligible employees are entitled to short- term leave for up to 26 weeks in a rolling 12-month period. The rolling 12-month period is calculated by counting backwards from the date of the leave request. For example, if you request a leave in November, the rolling 12-month period is from November of the previous year to November of the current year. You will be required to provide a medical doctor's certificate to qualify for short- term disability leave. STD runs concurrent with the Family and Medical Leave Act (FMLA). Your weekly benefit is 50% of your weekly salary to a maximum of $300, whichever is less. . . . . Thus, Wexford policies, at the times relevant, allowed eligible employees to take up to 12 weeks of leave pursuant to the FMLA and 26 weeks of what Wexford termed "short-term disability" leave, the latter to run concurrently with the 12 weeks of family medical leave. Policy 5.3 describes Wexford's policy concerning "When Return to Work is Not Possible": If following 26 weeks of medical leave you remain unable to return to work your employment will be terminated. If you are able to work at a later point in time, you are welcome to reapply for employment. Your past history and work background will be taken into consideration for reemployment purposes. Consistent with this policy, Wexford does not grant extensions of the 26 week, short-term disability maximum absence. Also consistent with the policy, Wexford treats an employee as terminated at the end of the 26 week short-term disability absence if the employee does not return to work. Policies 5.3 and 5.4 provide the procedural requirements for applying for a medical leave of absence (forms to file, providing health care professional certifications of illness, etc.) and other procedures and the conditions for which FMLA leave will be granted. Of relevance to this matter, one of the conditions for which FMLA leave will be granted is: "a serious health condition that makes you unable to perform the essential functions of your job." Policy 5.4. Policy 5.7 of the Revised Employee Handbook is the established procedure for "Personal Leave of Absence - Unpaid." That Policy provides, in pertinent part" With the approval of management and the Vice President of Human Resources, you may be granted an unpaid personal leave for unusual, unavoidable situations requiring an absence from work. The unpaid personal leave is for a pre-determined period of time. Unpaid personal leaves of absence are awarded at the discretion of management and cannot be presumed or guaranteed. You must use all available PTO [personal time off] before requesting personal leave. . . . As reasonably interpreted by Wexford, the Unpaid Personal Leave of Absence policy is not used or intended for use as a method of taking off time in addition to the time off allowed by Wexford's policies governing FMLA leave and short- term disability leave. Ms. Seiden's Absence from Wexford. Ms. Seiden, who acknowledged receipt of, and responsibility for reading, the Employee Handbook at the time she was employed by Wexford, was diagnosed with kidney carcinoma in 2004. As a result of her illness she did not rest comfortably and, therefore, woke up during the night, she could not sit for long periods of time, and, although not fully developed in the record, she required hospitalization. As a result of her illness, Ms. Seiden was, due to a "serious health condition," "unable to perform the essential functions of [her] job." As a consequence, the last day that Ms. Seiden worked at BCI was April 26, 2004. Ms. Seiden was provided a Memorandum dated May 6, 2004, from Tara M. DeVenzio, Risk Management/Leave Compliance Assistant (hereinafter referred to as the "May 6th Memorandum"). The May 6th Memorandum, which Ms. Seiden read, states that Wexford had been notified that she was requesting a leave of absence and is "in need of Family Medical Leave (FML) and Short Term Disability (STD) forms." Those forms were included with the May 6th Memorandum. The May 6th Memorandum goes on to explain the procedures Ms. Seiden was required to follow in making her request for leave and the extent of leave available to her. The May 6th Memorandum also informed Ms. Seiden that, consistent with Wexford's written leave policies, the "[m]aximum amount of time allotted for Short Term Disability is 26-weeks on a rolling twelve (12) month period . . ." and that "[i]f you do not return when your leave has ended, you will be considered to have voluntarily terminated employment." Consistent with the May 6th Memorandum and the policies of the Employee Handbook, Ms. Seiden completed the forms required by Wexford to apply for FMLA and short-term disability leave to begin in April 2004, and end in October 2004. Ms. Seiden executed a Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Initial Leave Request") on May 10, 2004. (Petitioner's Exhibit 14). On the Initial Leave Request Ms. Seiden checked a box which indicated her reason for requesting leave was "Serious health condition that makes me, the employee, unable to perform the functions of my position." A space on the Initial Leave Request for "Date Leave of Absence to End" was left blank. Also provided to Wexford with the Initial Leave Request, was a Certification of Health Care Provider (hereinafter referred to as the "Certification"), as required by Wexford's leave policies. The Certification was from Nine J. Pearlmutter, M.D. Dr. Pearlmutter reported on the Certification that Ms. Seiden's "serious health condition" was a "renal mass" and that hospitalization was necessary. Dr. Pearlmutter also stated "yes at this time" in response to the following question on the Certification: If medical leave is required for the employee's absence from work because of the employee's own condition (including absences due to pregnancy or a chronic condition), is the employee unable to perform work of any kind? Ms. Seiden's Initial Leave Request was approved and she was provided a Memorandum dated May 25, 2004, from Ms. DeVenzio, memoralizing the approval. Ms. DeVenzio informed Ms. Seiden that her leave was approved "to commence on April 26, 2004." Ms. Seiden's 26-week period of leave began on April 26, 2004, ended October 25, 2004. Throughout this period, Ms. Seiden remained absent from BCI. On October 22, 2004, a Friday, Ms. Seiden telephoned Ellie Zeigler a Human Resources Generalist for Wexford, and spoke to her about the pending end of her approved leave. Ms. Seiden informed Ms. Zeigler that she wanted to request an extension of her leave, which Ms. Zeigler had not authority to grant or deny. Ms. Zeigler, who had not authority to approve or disapprove the request for an extension, told Ms. Seiden that she would send her forms, which she would have to file in order to request additional leave. Ms. Zeigler also explained to Ms. Seiden that the maximum leave available to her had been exhausted, and that, because her physician had not released her for return to work, her employment with Wexford would be considered terminated if she did not return to work the following Monday. Ms. Zeigler also told Ms. Seiden that a letter to that effect would be sent to her. Ms. Zeigler, as promised, sent Ms. Seiden a Wexford Family / Medical Leave of Absence Request. On Wednesday, October 27, 2004, two days after Ms. Zeigler's approved absence ended, Ms. Seiden executed the Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Second Leave Request") which Ms. Zeigler provided to her. Again, she checked as the "Reason for Leave" the box indicating "Serious health condition that makes me, the employee, unable to perform the functions of my position" and the "Date Leave of Absence to End" space was left blank. A second Certification of Health Care Provider form (hereinafter referred to as the "Second Certification"), executed by Dr. Pearlmutter was provided with the Second Leave Request. Dr. Pearlmutter listed, among other things, carcinoma of the kidney as Ms. Seiden's illness. While Dr. Pearlmutter indicates a "2 month" duration for one of the listed conditions, she did not indicate when Ms. Seiden would be able to return to work at the end of two months. Again, Dr. Pearlmutter answered "yes" to the question quoted in Finding of fact 18. The Second Leave Request, which was sent by certified mail on Thursday, October 28, 2004, three days after the end of Ms. Seiden's approved leave, was received by Wexford on Monday, November 1, 2004, seven days after the end of her approved leave. The Termination of Ms. Seiden's Employment. On October 25, 2004, the last day of Ms. Seiden's approved absence, Arthur Victor, Wexford's Human Resources Manager, and Ms. Zeigler exchanged e-mails concerning Ms. Seiden. In response to an inquiry from Mr. Victor, Ms. Zeigler informed Mr. Victor that October 25, 2004, was the last day of Ms. Seiden's approved leave. In response to Ms. Zeigler's information, Mr. Victor wrote "[t]hen there is no extension. Six months is up 10/30/04. You need to talk to Ron Miller re. termination." This decision was consistent with Wexford’s written policies and was based upon Ms. Seiden's failure to return to work on October 25, 2004. Given Mr. Victor's statement that "there is no extension," it is found that Mr. Victor had been informed that Ms. Seiden intended to request an extension of her approved absence. It is also found that Wexford was aware of the reason for Ms. Seiden's absence: kidney cancer. Finally, it is found that, by terminating Ms. Seiden's employment, Wexford denied the requested extension. After receiving Mr. Victor's e-mail indicating that Ms. Seiden would be terminated, Ms. Zeigler wrote to Ron Miler and Judy Choate, Ms. Seiden's supervisor, and informed them of the following: I received a call from Jane last friday [sic] requesting an extension for her fmla. Jane's 26 weeks for her std/fmla has expired as of today (10/25/04). I just spoke with Jane and inform [sic] her that her Dr. has not released her for full duty and that she was exhausted all of her authorized fmla/std leave and that Wexford considers her to have resigned from her position. I told Jane that Judy will be sending her a letter confirming her of the above. To Ms. Choate, Ms. Zeigler continued: The letter should be sent from you. Attached you will find a copy of the letter that Art has drafted for your [sic] to send to Jane regarding her std/fmla. . . . . Also, please complete the "Termination Processing From" and forward it to the Pittsburgh office so I can term her out of the system. The draft termination letter provided to Ms. Choate and dated October 26, 2004, was signed by Ms. Choate and sent to Ms. Seiden. The letter (hereinafter referred to as the "Termination Letter") states, in part: As you are aware, you have exhausted all authorized Family and Medical/Short Term Disability leave. You were to return to work on October 25, 2004. Since you have not returned, Wexford Health Sources, Inc. considers you to have resigned your position as a Licensed practical [sic] Nurse, effective October 25, 2004. If you are in disagreement with this letter, please contact me immediately but no later than 4:00pm, on 10/28/02004 at If it is determined that there were extenuating circumstances for the absence and failure to notify, you may be considered for reinstatement. . . . . Ms. Seiden received the Termination Letter on November 3, 2004. She did not contact Ms. Choate about the matter. Although she had been informed on October 22, 2004, that she would be terminated by Wexford during her telephone conversation with Ms. Zeigler, November 3, 2004, constitutes the first official notice of Wexford's adverse action which Ms. Seiden received. The effective date of Ms. Seiden's termination was October 25, 2004. The Reason for Ms. Seiden's Termination. Ms. Seiden was terminated because, consistent with written Wexford policies which Ms. Seiden had been informed of on more than one occasion, Ms. Seiden had exhausted the maximum family medical leave and short-term disability leave she was authorized to take. Having used the maximum authorized medical leave, Ms. Seiden was still unable to perform any of the functions and duties required of her position. Due to her illness, she was simply unable to perform any work at all during the period relevant to this case, a fact Wexford was aware of. While she testified at hearing that she had been told by her physician that she would be able to return to work in January 2005, that testimony constitutes hearsay upon which a finding of fact will not be made. More significantly, Wexford was never informed by Ms. Seiden or her physician that she would be able to work. Wexford's policies gave Ms. Seiden leave in excess of the 12 weeks required by the FMLA. Wexford was not required to do more. Ms. Seiden's Claim of Discrimination. Ms. Seiden filed her Employment Complaint of Discrimination with the FCHR on November 30, 2005, or 392 days after being informed that she had been terminated and 401 days after her actual October 25, 2004, termination date. After a Determination: No Cause was issued by the FCHR, Ms. Seiden filed a Petition for Relief in which she alleged that Wexford had "violated the Florida Civil Rights Act of 1992 by terminating [her] based upon a perceived disability." No allegation of failure to provide an accommodation for her disability was alleged in the Petition. Summary. The evidence proved that Ms. Seiden failed to file her complaint of discrimination with the FCHR within 365 days of the discriminatory act. She offered no explanation as to why she did not do so. Ms. Seiden failed to establish a prima facie case of unlawful employment discrimination. While she did prove that she suffered from kidney cancer and that, as a result of her illness she was unable to perform the duties of her position, which may constitute a disability, she ultimately failed to prove that she was a "qualified individual" with or without an accommodation. From April 2004 through October 22, 2004, when she orally informed Wexford that she desired an extension of leave, her termination from employment on October 25, 2004, and on November 1, 2004, when her formal request for an extension of leave was received by Wexford, Ms. Seiden, along with her physician, reported to Wexford that she was unable to carry out her employment duties. Ms. Seiden also failed to prove that she was terminated because of her illness, on the basis of a perceived disability. Finally, Wexford proved a non-pretextual, non- discriminatory reason for terminating Ms. Seiden's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Jane Seiden. DONE AND ENTERED this 18th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2007.
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
