The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner was formerly employed as an Unemployment Compensation (UC) Adjudicator in Respondent's Miami UC office. In this capacity, he interviewed claimants seeking unemployment compensation and made initial determinations regarding the validity of their claims. Petitioner was often absent because of illness. When he was at work, however, he performed his duties competently. Petitioner and his fellow employees at the Miami UC Office were required to notify supervisory personnel no later than the beginning of the workday if they were going to be absent that day. Petitioner was made aware of this requirement on various occasions prior to the absences that led to the termination of his employment with Respondent. On Tuesday, September 5, 1989, Petitioner telephoned his supervisor and told her that he would be absent that day because of an ankle injury he had sustained. He did not indicate during the conversation whether he would be at work the following day. On Wednesday, September 6, 1989, and Thursday, September 7, 1989, Petitioner neither reported to work nor contacted his supervisor at any time during the day to give notification of his absence. On Friday, September 8, 1989, Petitioner again failed to report to work. He did, however, telephone his supervisor concerning his absence, but he did not do so until 4:50 p.m., 20 minutes after the shift to which he was assigned had ended. By letter dated September 11, 1989, Respondent notified Petitioner that it had determined that Petitioner had abandoned his position and resigned from the Career Service effective the close of business September 8, 1989, in view of his unauthorized absence from work on September 6, 7, and 8, 1989. It is this determination that is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1990. STUART H. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact To the extent that Petitioner asserts in his letter that he contacted his supervisor on September 5, 1989, and again on September 8, 1989, his proposed findings of fact have been accepted and incorporated in substance in this Recommended Order. To the extent that he claims that he "did not have 3 consecutive days of unauthorized absences," his proposed factual findings have been rejected because they are contrary to the preponderance of the evidence. Respondent's Proposed Findings of Fact First Sentence: Accepted and incorporated in substance; Second Sentence: Rejected because it adds only unnecessary detail. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. First, second and fifth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. COPIES FURNISHED: Jerry Cooper 1601 Northwest 17th Street, #2 Miami, Florida 33125 Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 William A. Frieder Senior Attorney Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hugo Menendez, Secretary Florida, Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent must repay $558.74 for alleged salary overpayment for the period between December 14, 1990 and April 26, 1991.
Findings Of Fact At all times material to these proceedings, Respondent Allen was a career service employee with the Department who was subject to the collective bargaining agreement. Respondent was designated as the Public Assistance Specialist I who would act in a supervisory capacity during her unit supervisor's maternity leave. Respondent accepted the temporary appointment and received a higher rate of pay from the Department during the time she was filling the position, in accordance with the collective bargaining agreement. Pursuant to the collective bargaining agreement, a career service employee who performs the duties of a higher level position for a period of time more than twenty-two workdays within any six consecutive months, is eligible to receive a promotional pay increase. This pay increase should be granted in accordance with the Personnel Rules of the Career Service System, beginning with the twenty-third day. This type of temporary appointment is referred to within the Career Service System as "Out of Title" work, and is located in Article 21 of the agreement. Employees being paid at a higher rate while temporarily filling a position in a higher classification are returned to their regular rate of pay when the period of employment in the higher class is ended. Originally, Respondent's "Out of Title" status and increased pay were to be effective from June 1, 1990 until the supervisor returned from maternity leave. This time period began on June 1, 1990 and ended in some respects on December 14, 1990. The supervisor returned to work on a four-day basis, Tuesdays through Thursdays, for an additional three month period. Due to some special needs of the supervisor related to the birth of her child, the Department allowed her to continue to remain at home on Mondays after she was originally due back to work from maternity leave. This arrangement continued from December 14, 1990 to March 20, 1991. During these Mondays, Respondent continued to actively perform the duties of the higher level supervisory position for eleven consecutive weeks. In addition, Respondent acted as the unit supervisor during all other days her supervisor was unavailable for work. These additional days, however, were not arranged for in advance by the supervisor before returning to work from maternity leave, as were the consecutive Mondays. On April 29,1991, a Report of Personnel Action from the Department transferred Respondent from her higher "Out of Title" pay and status to her permanent position as a Public Assistance Specialist II [a promotion received April 12, 1991]. The effective date of the action was made retroactive to December 14, 1990, the day the supervisor on maternity leave returned to her job on a four-day a week basis. Prior to her receipt of the Report of Personnel Action on April 30, 1991, Respondent was unaware that her "Out of Title" job duties and the commensurate pay increase ceased on December 14, 1990. She had been performing supervisory duties on Mondays after that date under the belief that an overlap in position was permitted to assist the supervisor with her temporary special needs involved with childbirth and the baby's care. Respondent was not advised of the amount of the overpayment of salary the Department contends she received between December 14, 1990 and April 26, 1991, until July 25, 1991. The original amount of the salary overpayment the Department sought to recover from Respondent was $558.74. After the parties stipulated that Respondent performed supervisory functions on the eleven scheduled Mondays, the Department reduced its claim for overpayment to reflect a higher salary for Respondent on those dates. This reduced the claim for overpayment by $65.03, thus making the Department's total claim $493.71.
Recommendation Based upon the foregoing, it is RECOMMENDED: Respondent is to be notified by the Department of the grievance procedures that can be used for the settlement of this dispute between employer and employee, along with the time deadline she has to elect the procedure to be used for the dispute resolution. The pending case is to be dismissed for lack of subject matter jurisdiction, and transferred to the correct forum timely elected by Respondent, without prejudice to either party. DONE and ENTERED this 27 day of January, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE No. 91-6197 Respondent's Recommendation of Facts are addressed as follows: Rejected. Whether overpayment occurred needs to be resolved in a different forum, based on one or more of the following: an interpretation of the collective bargaining agreement; an interpretation of an overlap in position in this case; or an unfair labor practice. Accepted. See Finding of Fact #8 and Factual Stipulation #5. Rejected. Contrary to law. See Rue 3A-31.309(1)(d), Florida Administrative Code, Chapter 17, Florida Statutes. Accepted. See Factual Stipulation #7. COPIES FURNISHED: Jack Emory Farley Esq HRS District VI Legal Office Room 500 - Fifth Floor 4000 W Dr Martin Luther King Jr Blvd Tampa Fl 33614 Annie L Allen 6420 N 23rd St Tampa Fl 33610 John Slye Esq General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700 Sam Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700
The Issue The issue in this case is whether Petitioner was overpaid in the amount of $809.46; and, if so, whether she should be required to repay that amount to Respondent.
Findings Of Fact At all times material to this matter, Petitioner was a career service employee of Respondent until her separation in October 2018. Petitioner went into labor unexpectedly in December 2017, and as a result, she began maternity leave. Petitioner was not present at work and did not submit a timesheet for the timeframe of December 29, 2017, through July 2, 2018. Petitioner testified that she was unable to submit her timesheets electronically and for this reason, someone else submitted them on her behalf. The evidence presented at hearing did not show who submitted her timesheets. By May 23, 2018, Petitioner had exhausted all of her annual, sick, and donated leave. Once an employee of Respondent no longer has sick leave remaining, annual leave is used to cover any shortages of sick leave. An employee may use donated leave to cover any shortages. Once an employee has exhausted annual, sick, and donated leave, the employee cannot be paid for additional time taken as leave. The additional time during leave is considered “leave without pay” (“LWOP”). Petitioner was placed on LWOP from March 23, 2018, through July 2, 2018, because she had exhausted all of her leave. Although Petitioner was on LWOP during the pay period of May 4, 2018, through May 17, 2018, a pay warrant for 80 hours of work was inadvertently issued on May 25, 2018, for that pay period. Consequently, Petitioner was overpaid $809.46. Petitioner was not responsible for the overpayment. She did not submit her timesheets and, thus, did not falsify them. Petitioner testified that her supervisor verbally advised her that she had received donated leave, but she could not recall the amount. Petitioner also did not offer any written representation from her supervisor or otherwise regarding her leave. The overpayment resulted because Petitioner's timesheet for LWOP for the pay period of May 4, 2018, through May 17, 2018, was not timely approved. Upon discovery of this error, Respondent’s human resources office conducted a manual audit of Petitioner’s leave. Ms. Anderson completed the leave audit and discovered that Petitioner had been overpaid for the May 4, 2018, through May 17, 2018, pay period. On May 30, 2018, the Department sent Petitioner a certified letter requesting the overpaid amount of $809.46. Petitioner became aware of the error when she received the Department’s letter. Petitioner’s pay was transmitted to her bank account electronically via direct deposit. However, she was not monitoring her bank account closely and did not immediately realize that she had been erroneously overpaid. At the time of the final hearing, Petitioner had not paid the overpayment. Petitioner stated she could only pay $40 per month to repay the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final Order requiring Shanace Isaac to repay Respondent $809.46. DONE AND ENTERED this 7th day of March, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 7th day of March, 2019. COPIES FURNISHED: Shanace Isaac Post Office Box 101 Hastings, Florida 32145 (eServed) Riley Michelle Landy, Esquire Department of Health Bin A-02 5052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Shannon Revels, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 (eServed) Louise Wilhite-St Laurent, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 (eServed)
The Issue Proposed transfer of Bernice Ino, as specified in letter of Anthony Ninos, Director of Division of Hotels and Restaurants, dated July 27, 1976. This is an appeal of a career service employee pursuant to Section 110.061, Florida Statutes. The appeal was referred to the Division of Administrative Hearings by the Career Service Commission on November 24, 1976.
Findings Of Fact By the General Appropriations act emanating from the 1976 state legislative session, 38 employee positions of the Respondent's Division of Hotel and Restaurants were abolished. Although the specific positions were not identified in the appropriations act, the Division director was informed by a staff representative of the legislative committee on appropriations that 25 Hotel and Restaurant Inspector I positions and six Inspector II positions should be among those eliminated. The Division previously had 103 Inspectors of the two classes. Respondent identified the positions statewide to be eliminated and requested the Secretary, Department of Administration, to approve the concept that the competitive area for layoff of employees be statewide within the Division. Approval of this plan was secured and Respondent proceeded to abolish the positions and to layoff Inspectors in its various districts throughout the state. Since the Division at the time had eight vacancies for Inspector positions only 23 employees were actually eliminated. Layoffs were carried out under a retention point system based on length of service and performance evaluations, computed and applied under the provisions of Department of Administration Emergency Rule 22AER76-1, Subject "Emergency Rule Governing Layoff of Career Service Employees". As to Inspectors I, the 83 such positions in the state were placed on a numerical list, according to total number of retention points of each employee, and those with the lowest numbers were selected for layoff. Seven employees were terminated in District I (Jacksonville) and one in District IV (Ft. Lauderdale). (Testimony of Ninos, Dorn, Exhibits 1, 9-12) As a result of the abolishment of Inspector positions, there was an imbalance in manning levels in the various state districts. In Jacksonville, there had been eight inspector positions. The abolishment of three of these left five vacancies that had to be filled. On the other hand, there were negative vacancies in the Ft. Lauderdale district. The Division director therefore instructed the Respondents' personnel officer, Lee Dorn, to reapportion the state to effectively cover all inspection areas. Specifically, he directed that five Inspector I positions be transferred to Jacksonville, 3 of them to come from the Ft. Lauderdale district. In a Memorandum to Dorn, dated July 15, 1976, the director identified the three positions in Ft. Lauderdale for transfer as those held by A. V. Maloni, Bernice N. Ino, and J. F. Friedman. The retention points of these employees had been calculated respectively at 210, 169, and 165. These three employees, and two others to be transferred to Jacksonville from District V, were those Inspectors who had the lowest number of retention points after those having less retention points had been laid off. It was stipulated by the parties that the number of retention joints calculated for Petitioner is correct based on the criteria set forth in the Department of Administration's Emergency Rule. (Testimony of Ninos, Dorn, Exhibit 2) It thereafter developed that of the three Ft. Lauderdale employees, Petitioner was the only one who would actually have had to take an involuntary transfer to Jacksonville. Mr. Friedman, who had less retention points, secured a new position with another agency. Maloni, who had more retention points than Petitioner, was reassigned to a position in the Ft. Lauderdale district that was vacated when the incumbent, in turn, was reassigned to another position made vacant by the illness and eventual separation of its incumbent, John W. Murray. The person replacing Murray, A. J. Pergament, had 792 retention points. (Testimony of Ninos, Dorn, Smith, Exhibits 4, 6-8, 14-21) Petitioner was orally informed in late June of her proposed transfer by her District Supervisor, Chauncey D. Smith. This was followed by a letter, dated July 27, 1976, from the Division director that formally advised her of the transfer of her position to the Jacksonville district, effective August 1, 1976. The letter gave as a basis for the transfer the fact that legislative abolishment of positions made it necessary for the Division to reapportion its staffing to effectively cover all inspection areas and that the proposed changes were being made to obtain "equity, effectiveness, and efficiency within our districts". The letter further advised Petitioner of her right to appeal the transfer to the Career Service Commission. Although this letter did not reach Petitioner through the mail due to an incorrect address, a copy was personally served on her on July 29. Petitioner acknowledges that the incorrect address was due to her negligence in advising Respondent correctly as to the same. In a memo to Petitioner, dated July 28, Smith had conveyed Division instructions for her to report to Jacksonville on August 2. Petitioner declined to accept the transfer. She filed her appeal by letter of July 31, 1976 and thereafter resigned, effective August 2, 1976. Her appeal letter stated that she had not been given sufficient notice to relocate and that the transfer would be a great financial hardship due to the fact that she had purchased a home in the area recently. (Testimony of Dorn, Smith, Ino, Exhibits 3, 13, 22-23) At a meeting with Smith and the Division's Chief of Enforcement, B. E. Fernandez, in early August, Petitioner was informed that she would be given the next opening in Ft. Lauderdale. In fact, Inspector Murray was not separated until November but his job had been filled on a temporary basis by Maloni. When Murray was finally separated, Maloni stayed in the position. Petitioner had been told by Smith that it would be a hardship for Maloni to suffer a transfer because of family considerations, but would not be so difficult for her because she could obtain unemployment compensation and she need not be concerned because her husband was working. When Murray finally departed, Petitioner called the Division director regarding the promise that she would have the next opening and he wrote her in December, 1976, that, although she was next in line for any vacancy, Maloni had received Murray's job because he had more retention points. Also, during this period, Fernandez and Smith offered Petitioner openings in Gainesville and Daytona Beach, but she declined to accept them because she wished to stay in Broward County. Smith also suggested that she get a job as a hostess or cocktail waitress because she was cute and petite. (Testimony of Ino, Smith, Fernandez, Exhibit 4) Petitioner testified that she was of the opinion her sex was a factor in the matter because nothing was done for her by Division personnel and because of the comments made by Smith concerning her eligibility for unemployment compensation and his comments concerning the possibility of her becoming a cocktail waitress. (Testimony of Ino) Petitioner was employed by Respondent from June 1, 1973 to August 2, 1977. She had performed her duties in an exemplary manner. (Testimony of McCulley)
Recommendation It is recommended that the Career Service Commission deny the appeal. DONE and ENTERED this 23rd of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Lawrence D. Winson Staff Attorney Department of Business Regulation The Capitol Tallahassee, Florida 32304 Roger D. Haagenson 800 E. Broward Building Suite 610 Ft. Lauderdale, Florida 33301
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work). Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits. DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 12th day of December, 1991. COPIES FURNISHED: Thomas J. Carpenter 1669 Flamingo Blvd. Bradenton, FL 34207 Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services P.O. Box 1415 Punta Gorda, FL 33951-1415 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Anthony N. DeLuccia, Esquire Department of Health and Rehabilitative Services P.O. Box 06085 Fort Myers, FL 33906
The Issue The issues are whether Petitioner received a salary overpayment at the time of her separation from employment with Respondent to which she was not entitled, as set forth in correspondence dated February 5, 2016; and, if so, whether Respondent is entitled to a repayment for the salary overpayment made to Petitioner.
Findings Of Fact Petitioner, Jasminne Myles, was hired as a career service employee of the Department in the position of Economic Self Sufficiency Specialist I in the Office of Economic Self Sufficiency, with an effective appointment date of May 22, 2015, which included a 12-month probationary status. Petitioner resigned from her employment with the Department effective January 21, 2016. At that point, she had been employed with the Department for eight months, placing her squarely within the 12-month probationary period. Petitioner’s supervisor submitted her approved, accurate time record 26 minutes late on February 3, 2016, which resulted in Petitioner being paid for 80 hours for the month, rather than for the 40 hours to which she was entitled to be paid during her last pay period. Petitioner testified that she was told by various supervisory employees of the Department who ranked above her and upon whose statements she believed she could rely, that she was entitled to her entire amount of unused annual leave. She believed her final paycheck in the amount she usually received, was the one to which she was entitled. Unfortunately for Petitioner, any information she received or believes she received from her supervisors in this regard, was incorrect. The Department is bound by statute and rule as to how its employees are paid, including the handling of leave pay-outs for employees during their probationary periods. Petitioner believed she had been properly compensated until she was contacted by Susan Monick, who informed her of the overpayment. She was told that, because she had not been employed by the Department for 12 months, she was not allowed to take her unused vacation time. While Petitioner did not recall receiving or reading the employee handbook given to her by the Department outlining CFOP 60-1, which mirrors the applicable Florida Administrative Code Rule 60L-34.0041(6)(a), she acknowledged that the language put before her at the hearing supported the Department’s position regarding her entitlement to the leave pay-out. Ms. Monick testified that she has been employed by the Department for 33 years and that she sent Petitioner a letter notifying her of the overpayment in the amount of $408.46 on February 5, 2016. She acknowledged Petitioner’s service of eight months and the fact that the paycheck had been automatically generated due to the barely late filing of Petitioner’s termination paperwork. She also told Petitioner that she must repay the full $408.86, the overpayment amount. Ms. Monick stated that if Petitioner had extended her separation date by one week and used her annual leave, she would not have been overpaid and would have been entitled to the full amount of the paycheck.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order requiring Petitioner to repay the salary overpayment in the amount of $408.86. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2016. COPIES FURNISHED: Jane Almy-Loewinger, Esquire Department of Children and Families 210 North Palmetto Avenue, Suite 447 Daytona Beach, Florida 32114 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Jasminne Myles 222 Ontario Court Daytona Beach, Florida 32114 Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
