The Issue The issue in this case is whether Petitioner, Barbara L. Hughes, who was reemployed as a "media specialist," but who also taught a class, violated the provisions of Section 121.091, Florida Statutes (2006).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, Barbara L. Hughes, is a member of FRS. She terminated DROP and retired effective June 30, 2007. Petitioner returned to work on August 14, 2007. Petitioner was paid retirement benefits and health insurance subsidy payments for August 2007. The retirement benefit for August was $1,640.23. The health insurance subsidy payment for August was $150.00. The total amount for retirement benefits and health insurance benefits was $1,790.23. To avoid a threatened penalty, she voluntarily repaid these benefits subject to her belief that she was legally entitled to them. Petitioner's retirement benefits have been inactivated since September 2007. Petitioner is currently employed and has been employed for more than 32 years as a media specialist for the Glades County School Board, teaching at Moore Haven Junior-Senior High School. The school's student population is approximately 350. Although her position title is "media specialist," her present instructional activities are mixed, i.e., she is a media specialist 71 percent of the workday and a classroom teacher 29 percent of the workday. In July 1999, Petitioner enrolled in the Florida Retirement System DROP plan. The Florida Retirement System DROP plan allows a member of the FRS to retire and accrue retirement benefits while the member continues employment. Since the member does not accrue further service credit while in DROP, the FRS considers the member retired. Petitioner terminated her DROP and retired, effective June 30, 2007. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes. Petitioner returned to employment with an annual contract with a position title, media specialist, in August 2007. This was the same position that she had been employed in when she entered and terminated DROP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Barbara L. Hughes, meets the definition of "classroom teacher" in Subsection 1012.01(2)(a), Florida Statutes, and that she is eligible for retirement payments from August 2007 to present. DONE AND ENTERED this 7th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 7th day of February, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Barbara L. Hughes c/o Norman L. Hughes Education Center of Southwest Florida, Inc. Post Office Box 183 LaBelle, Florida 33975 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
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 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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Frank J. Alogna, Park Manager at Ravine State Gardens at Palatka, Florida. Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment. Petitioner was absent without leave on January 14, 15, and 16, 1987. Respondent's regular days off were January 17 and 18, 1987. January 19, 1987 was a paid holiday. Respondent was absent without leave again on January 20 and 21, 1987. Petitioner's last day of work was January 11, 1987 since January 12 and 13, 1987 were Petitioner's regular days off. Respondent tried on several occasions to reach Petitioner, but was unable to do so. At 7:00 p.m. on January 21, 1987 Petitioner telephoned Alogna but had no satisfactory explanation for his unauthorized leave. During this telephonic conversation on January 21, 1987, Petitioner was informed by Alogna that he was considered to have abandoned his position and to have resigned from the Career Service. Respondent formally advised Petitioner of this decision by letter dated January 23, 1987 which was hand delivered to the Petitioner on February 12, 1987 after Petitioner failed to claim the letter sent by certified mail through the post office. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent. Although Petitioner was notified by regular U.S Mail of the date, place, and time of the formal hearing, Petitioner failed to appear. Petitioner lived approximately one (1) block from the entrance of Ravine State Gardens where he worked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a Final Order be entered deeming the Petitioner to have abandoned his position and to have resigned from the Career Service. Respectfully submitted and entered this 10th day of September, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1236 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner did not submit any Proposed Findings of Fact or Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 1. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 3. COPIES FURNISHED: Ed Pantaleon, Esquire Asst. Gen. Counsel Dept. of Natural Resources 3900 Commonwealth Blvd. Tallahassee, Florida 32303 Raymond W. Johnston Route 3., Box 4655 Palatka, Florida 32034 Pamela Miles, Esquire Dept. of Admin. 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Adis Vila, Secretary Dept. of Administration 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Augustus D. Aikens, Gen. Counsel Dept. of Admin. 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Tom Gardner, Executive Dir. Dept. of Natural Resources 3900 Commonwealth Bldg. Tallahassee, Florida 32303
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
Findings Of Fact Petitioner was employed by Respondent as a clerical worker, a permanent career service position, at all times material hereto. Prior to October 3, 1988, Petitioner experienced back problems which prevented her attendance at work. Dr. Brian M. Mitteldorf, a chiropractic physician, treated Petitioner beginning September 25, 1988, and continuing through all times material hereto. On October 3, 1988, Theresa (Terry) Bartelmo, Petitioner's supervisor, advised Petitioner in writing that Petitioner would be out of sick leave and annual leave the following day. Mrs. Bartelmo enclosed two copies of the form used to request a leave of absence and advised Petitioner that it was necessary to fill in all blanks and to return the form to her by no later than October 10, 1988. Respondent does not authorize any type of leave for unspecified or unlimited duration. Ms. Bartelmo further advised Petitioner that "... If I do not hear from you by that date, (October 10,1988) then I will assume you wish to terminate your employment with the Department and will process the necessary documentation." On October 3, 1988, Petitioner's husband, Edmund DeSilva, met with Ms. Bartelmo. During the meeting, Ms. Bartelmo gave to Mr. DeSilva the letter she had written to Mrs. DeSilva, together with the forms for the leave of absence. The form for leave of absence was signed by Petitioner on October 3, 1988. Mr. DeSilva hand delivered the form to Ms. Bartelmo prior to the deadline of October 10 set by Ms. Bartelmo. This form was forwarded by Ms. Bartelmo to Martha (Marty) Anderson, Respondent's district personnel manager. Ms. Bartelmo recommended that the leave of absence be granted. Ms. Anderson approved the leave of absence on October 13, 1988. The leave of absence form submitted by Petitioner and approved by Respondent contained a tentative return-to-work date of November 23, 1988. On October 3, 1988, the date Petitioner signed the leave of absence form, it was uncertain when Petitioner would be able to return to work because of her medical condition. On or about October 18, 1988, Ms. Bartelmo telephoned Petitioner to check on her progress. After Petitioner told Ms. Bartelmo that she did not feel well enough to talk, Ms. Bartelmo asked Petitioner to call her when Petitioner felt better. Ms. Bartelmo did not talk with Petitioner again until after Petitioner's employment was terminated. Dr. Mitteldorf called Ms. Bartelmo on November 22, 1988, at approximately 3:30 p.m. Dr. Mitteldorf told Ms. Bartelmo during that telephone conversation that Petitioner was too ill to return to work. Ms. Bartelmo asked Dr. Mitteldorf for a letter stating his opinion as to when Petitioner could return to work. Dr. Mitteldorf's letter was dated December 13, 1988. During their telephone conversation on November 22, 1988, Ms. Bartelmo did not tell or indicate to Dr. Mitteldorf that their conversation was tantamount to an extension of Petitioner's leave of absence. Ms. Bartelmo did not tell Dr. Mitteldorf that she was mailing to him the forms Petitioner needed to submit to request an extension of her leave of absence. Ms. Bartelmo can recommend approval of a request for leave of absence, but she does not have the authority to grant the approval. Ms. Bartelmo did not tell Petitioner or anyone acting on Petitioner's behalf, that Petitioner had any form of authorized leave after November 22, 1988. Other than having Dr. Mitteldorf call Ms. Bartelmo, Petitioner made no effort to have her leave of absence extended. Petitioner's authorized leave of absence ended on November 22, 1988. Petitioner was absent without authorized leave of absence beginning November 23, 1988, and continuing for more than 3 consecutive work days. By certified mailing on December 2, 1988, Petitioner was advised that her career service position was terminated as of December 1, 1988. Petitioner had been given a copy of Respondent's Employee Handbook on December 16, 1986, which provides in part: After an unauthorized absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policies. Petitioner's request for a formal hearing was timely filed.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service due to her unauthorized absence from employment for three consecutive workdays beginning November 23, 1988. DONE and ENTERED this 17th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 17, 18 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 9, 10, 15 and 16 of Petitioner's proposed findings of fact are unsupported by the evidence. COPIES FURNISHED: Larry D. Scott, Esquire Senior Attorney Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Colomba DeSilva 2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner is entitled to an award of attorney’s fees pursuant to Section 57.105(5), Florida Statutes, and, if so, what amount?
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 57.105(5), Fla. Stat.; and Order and Mandate in Case No. 1D04-4167, First District Court of Appeal. Section 57.105(5), Florida Statutes, reads as follows: (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection. Subsection (5) of Section 57.105, Florida Statutes, directs the undersigned to the preceding subsections which set forth standards to be applied in the analysis of entitlement to attorney’s fees. Subsection (1) provides that reasonable attorney’s fees shall be awarded to the prevailing party to be paid by the losing party where the losing party or the losing party’s attorney knew or should have known that a claim or defense, when initially presented to the administrative tribunal or at any time before the administrative hearing, “[w]as not supported by the material facts necessary to establish the claim or defense or [w]ould not be supported by the application of then-existing law to those material facts.” The standards set forth in Subsection (1) and incorporated by reference in Subsection (5) were the result of an amendment to Section 57.105, Florida Statutes, in 1999. s. 4, Ch. 99-225, Laws of Florida. Prior to that amendment, the statute provided for the award of attorney’s fees when “there was a complete absence of justiciable issue of either law or fact raised by the complaint or defense of the losing party.” These new standards became applicable to administrative hearings in 2003 by s. 9, Ch. 2003-94, Laws of Florida, with an effective date of June 4, 2003. Petitioner filed his Petition for Administrative Hearing in September 2003. Accordingly, the newer standards of Section 57.105, Florida Statutes, apply to this case. In the case of Wendy’s v. Vandergriff, 865 So. 2d 520, (Fla. 1st DCA 2003), the court discussed the legislative changes to Section 57.105: [T]his statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. See Ch. 99- 225, s. 4, Laws of Florida. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. (Citations omitted) However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings. (Citations omitted) In determining whether a party is entitled to statutory attorney's fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. (Citation omitted) In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.(Citation omitted) An award of fees is not always appropriate under section 57.105, even when the party seeking fees was successful in obtaining the dismissal of the action or summary judgment in an action. (Citation omitted) Wendy's v. Vandergriff, 865 So. 2d 520, 523. The court in Wendy’s recognized that the new standard is difficult to define and must be applied on a case-by-case basis: While the revised statute incorporates the ‘not supported by the material facts or would not be supported by application of then-existing law to those material facts’ standard instead of the ‘frivolous’ standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis. Wendy’s v. Vandergriff, 865 So. 2d 520, 524 citing Mullins v. Kennelly, 847 So. 2d at 1155, n.4. (Fla. 5th DCA 2003). More recently, the First District Court of Appeal further described the legislative change: The 1999 version lowered the bar a party must overcome before becoming entitled to attorney’s fees pursuant to section 57.105, Florida Statutes . . . Significantly, the 1999 version of 57.105 ‘applies to any claim or defense, and does not require that the entire action be frivolous.’ Albritton v. Ferrera, 913 So. 2d 5, 6 (Fla. 1st DCA 2005), quoting Mullins v. Kennelly, supra. The Florida Supreme Court has noted that the 1999 amendments to Section 57.105, Florida Statutes, “greatly expand the statute’s potential use.” Boca Burger, Inc. v. Richard Forum, 912 So. 2d 561, 570, (Fla. 2005). The phrase “supported by the material facts” found in Section 57.105(1)(a), Florida Statutes, was defined by the court in Albritton to mean that the “party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact.” Albritton, 913 So. 2d 5, at 7, n.1. Therefore, the first question is whether FAMU or its attorneys knew or should have known that its defense of Dr. Jain’s claim was not supported by the material facts necessary to establish the defense when the case was initially filed or at any time before trial. That is, did FAMU possess admissible evidence sufficient to establish its defense. The parties filed a Pretrial Stipulation the day before the hearing. The Pretrial Stipulation characterized FAMU’s position as follows: It is the position of the University that Dr. Babu Jain retired at the close of business on May 30, 2003, pursuant to the provision of the DROP retirement program. Dr. Jain did not have the right, nor the authority, to unilaterally rescind his resignation and retirement date. In a letter dated May 5, 2003, the Division of Retirement informed Dr. Jain that it was providing him with the “DROP VOID” form that had to be signed by himself and the University, for his participation in DROP to be rescinded. No University official signed that form nor agreed to rescind his retirement. On May 30, 2003, Dr. Babu Jain knew that his retirement through DROP had not been voided and that he had in-fact retired. The University included the position that Dr. Jain occupied in its vacancy announcement in the ‘Chronicle of Higher Education.’ The University, through Dr. Larry Robinson notified Dr. Jain that his retirement rescission was not accepted. Dr. Jain did not work past May 30, 2003. Finally, there was never a ‘meeting of the minds’, nor any other agreement between the University and Dr. Jain to void his retirement commitment. It [is] the University’s position that Dr. Babu Jain retired from Florida Agricultural and Mechanical University effective at the close of business on May 30, 2003. Pretrial Stipulation at 14-15. (emphasis in original) The material facts known by FAMU necessary to establish its defense against Petitioner's claim at the time the case was filed included: Petitioner’s initial Notice of Election to Participate in DROP and Resignation of Employment in which Dr. Jain resigned effective the date he terminated from DROP (designated as May 30, 2003); Dr. Robinson’s letter dated May 27, 2003, which asserted that the University was not in agreement with Dr. Jain's decision and that the decision to terminate from DROP is a mutual one; Dr. Robinson's letter of May 30, 2003, which informed Dr. Jain that the two summer semester employment contracts were issued to him in error and informing Dr. Jain that he would be paid through May 30, 2003, his designated DROP date; the refusal of anyone from FAMU to sign the DROP-VOID form provided to Dr. Jain by the Division of Retirement; the reassignment of another instructor to take over Dr. Jain’s classes the first Monday following the designated DROP termination date; and the Refund of Overpayment of Salary Form and resulting salary deduction from Dr. Jain’s sick leave payout. It is difficult to determine what, if any, additional facts FAMU learned through discovery. That is, whether deposition testimony of FAMU officials enlightened FAMU or its attorneys as to material facts not known at the time the case was filed by Dr. Jain, is not readily apparent. However, a review of the pre-trial depositions reveals material facts which supported FAMU’s defense that the summer contracts were issued in error and that there was no meeting of the minds between the parties regarding voiding Dr. Jain’s DROP participation. In particular, Dr. Robinson, Provost and Vice- President for Academic Affairs, testified in deposition that when he signed Dr. Jain’s summer employment contracts on May 20, 2003, he had no knowledge of Dr. Jain’s participation in the DROP program; that he first became aware that Dr. Jain was in DROP with a DROP termination date of May 30, 2003, upon receiving a May 21, 2003, memorandum from Nellie Woodruff, Director of the FAMU Personnel Office; and that Dean Larry Rivers did not have the authority to issue work assignments for any of his faculty beyond their DROP dates. Additionally, Dr. Henry Williams, Assistant Dean for Science and Technology, testified in deposition that when he signed the Recommendation for Summer Employment on May 5, 2003, which recommended Dr. Jain for teaching summer courses beginning May 12, 2003, he was unaware that there was a 30-day window during which a DROP participant could not be employed. Obviously, when the undersigned weighed all of the evidence, including evidence presented at hearing which is not part of this analysis, it was determined that the preponderance of the evidence was in favor of Dr. Jain’s position. However, that is not the standard to be applied here. The undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU possessed admissible evidence sufficient to establish the fact that it did not give written agreement to his decision to abandon DROP and resume employment if accepted by the finder of fact. While the finder of fact ultimately did not agree with FAMU, FAMU possessed the material facts necessary to establish the defense, i.e., admissible evidence sufficient to establish the fact if accepted by the trier of fact, when the case was filed and prior to the final hearing. The second question is whether FAMU’s defense would not be supported by the application of then existing law to those material facts, when the case was initially filed or at any time before the final hearing. In the Pretrial Stipulation, the parties referenced Sections 121.091(13) and 121.021(39), Florida Statutes, as provisions of law relevant to the determination of the issues in the case.2/ These statutory provisions were also referenced by the undersigned in the Recommended Order as “two competing statutory provisions.” Recommended Order at 15. Subsection 121.091(13), Florida Statutes, establishing the DROP program, was created by s. 8, Ch. 97-180, Laws of Florida, with an effective date of January 1, 1999.3/ Section 121.091(13), Florida Statutes (2003), read as follows: DEFERRED RETIREMENT OPTION PROGRAM.--In general, and subject to the provisions of this section, the Deferred Retirement Option Program, hereinafter referred to as the DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the System Trust Fund on behalf of the participant, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the participant shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Participation in the DROP does not guarantee employment for the specified period of DROP. Participation in the DROP by an eligible member beyond the initial 60-month period as authorized in this subsection shall be on an annual contractual basis for all participants. Section 121.021(39)(b), Florida Statutes (2003), read as follows: 'Termination' for a member electing to participate under the Deferred Retirement Option Program occurs when the Deferred Retirement Option Program participant ceases all employment relationships with employers under this system in accordance with s. 121.091(13), but in the event the Deferred Retirement Option Program participant should be employed by any such employer within the next calendar month, termination will be deemed not to have occurred, except as provided in s. 121.091(13)(b)4.c. A leave of absence shall constitute a continuation of the employment relationship. Unlike the situation in Albritton, supra, the DROP program was relatively new and the statutes creating the same were not well established provisions of law. Dr. Jain was in the first “class” of DROP for FAMU. FAMU and its lawyers did not have the benefit of established case law that discussed DROP and its provisions when this case was filed or at any time before the hearing. While general contract law also came into play, it had to be considered in the context of the DROP program, which had no precedent of case law. FAMU argues in its Response to the Motion for Attorney's Fees that it interpreted the provision in Section 121.091(13), Florida Statutes, that requires written approval of the employer to be either the DROP VOID form provided by the Division of Retirement or a written document, executed by the designated University official, specifically approving Petitioner's decision. "The University did not believe the employment contracts that were issued to Petitioner in error, would constitute written approval." FAMU's Response at 5. This argument is consistent with the position FAMU took in the Pretrial Statement quoted above, that there was never a meeting of the minds "or any other agreement" that Dr. Jain's retirement rescission was accepted. A critical conclusion in the Recommended Order is found in paragraph 38: "Moreover, while the FAMU administration did not sign the DROP-VOID form, the contracts issued to Dr. Jain constitute written approval of Dr. Jain's employer regarding modification of his termination date." FAMU also took the position in the Pretrial Stipulation that Dr. Jain did not work past May 30, 2003, based upon the material facts recited above. Under that reading of the facts, Dr. Jain did not work during the next calendar month after DROP, and, therefore terminated employment consistent with the definition of "termination" in Section 121.021(39)(b), Florida Statutes. Again, while the undersigned did not agree with FAMU's application of the material facts to the then-existing law, FAMU's interpretation was not completely without merit. See Mullins v. Kennerly, 847 So. 2d 1151, 1155. (Case completely without merit in law and cannot be supported by reasonable argument for extension, modification or reversal of existing law is a guideline for determining if an action is frivolous.) Accordingly, the undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU did not know and could not be expected to know that its defense would not be supported by the application of then-existing law to the material facts necessary to establish the defense. Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is ORDERED: Petitioner’s Motion for Attorney’s Fees is denied. DONE AND ORDERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S 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 1st day of March, 2006.
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.
Findings Of Fact Respondent was employed by Petitioner from December, 1982 to December, 1987 as a tariff clerk, a permanent career service position. On September 23, 1987 Respondent became ill and left work without informing her supervisor, Jill Hurd, or her co-workers. Hurd was available on September 23 and 24, 1987 if Respondent had tried to explain her absence or request leave authorization. Respondent presented Health Status Certificates to Petitioner signed by M. R. Grate, Jr., M.D., dated October 30, November 11 and 18, 1987 which certified her inability to return to work from October 27 through November 30, 1987, during which time she was under his care. On the basis of these certificates, Petitioner authorized her sick leave from October 27 to November 30, 1987. Respondent did return to work on December 2, 1987, but was again absent on consecutive work days of December 3, 4 and 7, 1987. On December 3, 1987, Respondent sent a note to Hurd, via her husband, stating she did not feel well and would not be in to work. On December 4, 1987 her husband again brought Hurd a note stating Respondent would not be in because her baby was ill. Respondent's husband called Hurd on December 7, 1987 to state that she was still ill and would not be in to work. Hurd stated that Respondent needed to get back to work. At no time did Respondent request leave for December 3, 4 and 7, 1987, nor was she approved for leave. She simply informed her supervisor, Hurd, through her husband that she was not coming to work each day. Prior to these unauthorized absences in December, 1987, Respondent had received a memorandum from Hurd on January 14, 1987 setting forth specific instructions for calling in sick following a number of unauthorized absences. Respondent was specifically instructed to call her supervisor, Hurd, each morning by 8:30 a.m. when she wanted to take sick leave. Despite this instruction, Respondent never called Hurd on December 3, 4 and 7, 1987, but simply had her husband deliver notes and messages to Hurd on her behalf. This prevented Hurd from discussing with Respondent the extent of her illness and when she expected to return to work. On November 25, 1987 Respondent had an appointment with Dr. Grate, who signed another Health Status Certificate for the period November 30 to December 11, 1987 indicating she remained under his care and was still unable to return to work. However, despite the fact she did report to work on December 2, 1987 and had been given specific instructions about how to apply for sick leave, she never presented Dr. Grate's Health Status Certificate dated November 25, 1987 to Hurd, or anyone else associated with Petitioner, until the hearing in this case. Therefore, Respondent did not present proper medical certification of illness for December 3, 4 and 7, 1987, and instead simply failed to report to work, or to in any way attempt to personally contact her supervisor. A letter dated December 7, 1987 notifying Respondent of her abandonment of position and of her right to a hearing was sent to Respondent from Petitioner's Executive Director by certified mail, return receipt requested. Respondent's husband signed for this letter on December 9, 1987, and Respondent acknowledges receipt.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter Final Order concluding that Respondent has abandoned her position with Petitioner in the career service due to her failure to report to work, or request leave, for December 3, 4 and 7, 1987. DONE AND ENTERED this 15th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN 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 March, 1988. APPENDIX (DOAH Case No. 88-0161) Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Findings of Fact 4, 7. Adopted in Findings of Fact 5, 6, 7. Adopted in Findings of Fact 7, 8. Adopted in Findings of Fact 5, 6. Adopted in Findings of Fact 7, 8, 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact cannot be made since her post-hearing submission shows no indication that a copy was provided to counsel for Petitioner, despite specific instruction at hearing, and the narrative contained in her letter consists of serial unnumbered paragraphs which primarily present argument on the evidence rather than true proposed findings of fact. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William S. Bilenky, Esquire Public Service Commission 212 Fletcher Building Tallahassee, Florida 32399-0850 Harold McLean, Esquire Public Service Commission Office of General Counsel 101 East Gaines Street Tallahassee, Florida 32399 Norma D. Saabir P. O. Box 5802 Tallahassee, Florida 32314-5802 =================================================================
