Findings Of Fact At all times pertinent to the issues herein, the Petitioner, William J. Gozza, was employed by the Respondent, Department, as a collection specialist II in the Department's Tampa office. The Department of Revenue was and is the state agency responsible for the collection of money due the state in taxes, with a branch office located in Tampa, Florida. Based on facts not described at the hearing, Petitioner was given a five day suspension from duty during the period September 11-15, 1989, and was scheduled to return to work on September 18, 1989. Petitioner did not return to work on that date and the Department was notified he was unable to do so because of a serious injury which was reportedly caused by Department employees. On September 13, 1989, however, Mr. J. D. Burrows, the Department's District Administrator supervising the office where Petitioner worked, by certified mail, confirmed to Mr. Gozza the substance of a telephone call between the parties of that same date in which Mr. Gozza was advised to report to work at 8:00 AM on September 18, 1989. This telephone call had culminated in Mr. Gozza's indicating that he "may or may not" report to work on September 18, 1989. In the September 13 letter, Mr. Burrows clearly advised Mr. Gozza that if he was ill or injured, a telephone call to that effect on September 18, as well as a certified medical certificate from the attending physician, "stating that you are unable to perform your duties" would be required. As was stated, Mr. Gozza did not return to work on September 18. However, on September 15, 1989, his physician, Dr. Kadosa, submitted a "disability statement" indicating that Petitioner was under his care for injuries received on September 11, 1989, and that these injuries "resulted in disability" from September 15, 1989 through October 16, 1989. On October 13, 1989, Dr. Kadosa submitted a second "disability statement" which indicated that the disability dates were extended from October 16, 1989 through November 16, 1989. Neither of these two statements contained the comment that Mr. Gozza was " unable to perform [his] duties." At hearing, however, Mr. Burrows indicated that his understanding of the word "disabled" or "disability" was that the individual so described was unable to perform his duties. On November 13, 1989, Dr. Kadosa submitted a third statement addressed to "To whom it may concern", advising that Mr. Gozza could return to work under light duty conditions on December 1, 1989, and that he was to work between two and four days a week, four to five hours per day. This third statement was accepted by Mr. Burrows as a certified medical excuse, but he also considered it as authority for Mr. Gozza to begin work again on December 1, 1989. Consistent with that conclusion, on November 15, 1989, Mr. Burrows wrote to the Petitioner by certified mail, tracing Petitioner's medical history from September 13, 1989, and advising him that the September and October medical certificates submitted by Dr. Kadosa were considered "not appropriate medical certifications to support the necessity for [him] to be off work" and that the Department considered him to be on unauthorized leave without pay during that period. Mr. Burrows also advised Mr. Gozza that prior to being able to return to work, he must obtain an appropriate medical certification from the doctor indicating that the doctor had determined that it was medically necessary that he not be at work for the period of time he was off from work since Monday, September 18, 1989. Mr. Gozza did not receive Mr. Burrows' November 15, 1989 letter until November 28, 1989. On that day he had a telephone call with Mr. Burrows the nature of which, if not the substance, is in dispute. Both parties agree that the topic of discussion was Mr. Gozza's prior and continuing absence from work, and both parties agree that Mr. Gozza was advised by Mr. Burrows that he was to report to work on December 1, 1989. Whereas Mr. Gozza indicates Mr. Burrows told him that when he reported, he must have an appropriate medical certificate and that he was not to report without it, Burrows denies this contending that when he advised Gozza to bring a medical certificate, Gozza advised him he would not be able to do so until at least December 4, 1989. Mr. Burrows contends that at no time did he indicate to Mr. Gozza that he was not to come back to work without the certificate, and both he and Ms. Dean, Mr. Gozza's immediate supervisor, indicated that had Mr. Gozza come to work without the certificate, but on time and as directed, some accommodation would have been made to allow him to return to work and to submit the required medical certificate at a later date when he was able to see his physician. Considering the evidence as a whole, it is found to be highly unlikely that either Mr. Burrows or Ms. Dean, who also spoke with Mr. Gozza on several occasions regarding his absence, told him that he could not come back to work without the certificate. The unalterable fact is that Mr. Gozza did not report to work, with or without a certificate, on December 1, 1989, the day he was directed to return, nor did he report on December 4, 5, or 6, 1989, the subsequent Monday, Tuesday, and Wednesday. On December 4, 1989, after Mr. Gozza failed to report as directed on December 1, 1989, Mr. Burrows recommended to Department personnel officials in Tallahassee, that Mr. Gozza's position be considered abandoned on the basis that he failed to come to work for three days and failed to provide the required medical backup, complicated by his failure to call in to the agency to explain. Thereafter, on December 7, 1989, Mr. Fritchman, Department personnel officer, advised Mr. Gozza by letter that the Department considered him to have abandoned his position of employment as of the close of business on December 6, 1989. This letter traces the Petitioner's absence history from September 18, 1989 through the date of the letter, and outlines the efforts made by Department personnel to explain to Mr. Gozza what was required of him to justify or excuse his absences, in addition to the regulatory provisions under which the excuse requirements were provided and under which this termination action was taken. Mr. Burrows and Ms. Dean both admit that at no time did they attempt to contact Mr. Gozza's physician to secure the medical certificate needed. Both claim it was not their responsibility to do so but that of the employee, and that this responsibility was impressed upon Mr. Gozza, directly, on several occasions. A Department memorandum, dated May 24, 1989, dealing with approval of leave without pay, such as medical leave in excess of sick leave, specifically states at paragraph 7, that "the employee is responsible for obtaining appropriate medical certification when requesting leave without pay for medical reasons." Mr. Gozza pointed out that the memorandum was addressed to all supervisors and that he was not personally provided with a copy and, therefore, did not know of the agency policy. This is clearly an ingenuous argument. Both Mr. Burrows and Ms. Dean were quite clear in their statements that they had advised Mr. Gozza directly that it was his responsibility to get the proper medical certification. This position was supported by Mr. Fritchman, and none of the three could recall any case where in a situation such as here, wherein an employee needed certification for an absence due to a medical condition, that Department employees assumed the absentee's responsibility for procuring his medical certificate. It is so found. Mr. Gozza also repeatedly alleged that the current action was not based on valid factual grounds but was taken as retaliation against him for his prior report of discrimination and corruption within the Department. Mr. Gozza presented no evidence of what the discriminatory activity to which he referred was or the nature of the corruption to which he alluded. However, both Mr. Fritchman and Mr. Burrows admitted that such a complaint was filed and was forwarded to Department officials in Tallahassee. Further, the evidence tends to suggest that as a result of "complaints" and "grievances" filed, including that of the Petitioner, Mr. Fritchman, along with others on an inspection team, came to Tampa to look into these allegations. No evidence was presented as to what the result of this investigation was and what corrective or other action, if any, was taken. The allegation of retaliation, which was unequivocally denied by Mr. Burrows, Ms. Dean, and Mr. Fritchman, is not supported by any evidence, and it cannot be found that this personnel action is based on anything other than Mr. Gozza's unexcused failure to come to work on December 1, 4, 5, and 6, 1989. Findings of Fact cannot be based on allegation alone. Evidence to support the allegations is required if they are to result in a positive finding. Here, there is no more than an allegation without supporting evidence.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a final Order be entered finding that Petitioner, William Gozza, abandoned his position with the Department of Administration and resigned from the Career Service when, on December 1, and 4-6, 1989, without authority, he absented himself from his work place for three consecutive days. RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0403 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed findings of Fact Submitted by the parties to this case. BY THE PETITIONER: None submitted. BY THE RESPONDENT: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. Ultimate fact accepted and incorporated. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. First sentence accepted and incorporated herein. Balance is no more than comment on the sufficiency of the evidence. Accepted and incorporated herein. Accepted and second sentence is incorporated herein. Not a Finding of Fact but more a statement of the pertinent regulatory provisions. COPIES FURNISHED: William J. Gozza 1777 Rosewall Drive Land O'Lakes, Florida 34639 Gene T. Sellers, Esquire 204 Carlton Building Post Office Box 6668 Tallahassee, Florida 32314-6668 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Respondent was employed by the Brevard County School District on January 15, 1990, as a Secretary III, Classified. She was assigned as secretary to Margaret Lewis, Director of Vocational Education. Classified employees are distinguished from certified employees who are teachers or administrators who hold teaching certificates. Respondent's duties included typing, handling and filing documents and correspondence, keeping budget and payroll records, copying and receiving incoming phone calls to the Department of Vocational Education. For approximately six months, Respondent and her supervisor had a good working relationship. Both were new to the Brevard County School District, and Margaret Lewis felt that together they could make positive changes in the unit. Respondent's personnel evaluation dated March 15, 1990, rates her in the "exceptional high" range in every category, with the highest possible rating being given in the categories, "work attitude," "cooperativeness," "personal appearance" and "tardiness." Something happened in the summer of 1990 around the time that the unit was moving from its office in Rockledge to the new district building in the Brevard County Governmental Center at Viera. The relationship between the two women rapidly deteriorated, a phenomenon observed by co-workers and the assistant superintendents, including Margaret Lewis' supervisor, Daniel Scheuerer. The circumstances were confusing, even to Jerry Copeland, Assistant Superintendent of Personnel Services. None could pinpoint the cause of the rift, although both Ms. Cooper and Ms. Lewis offered their own theories. Ms. Cooper described her supervisor arriving at work one morning crying and upset over some domestic situation. She went into Ms. Lewis' office with her and urged her to go home. Ms. Lewis eventually did leave and was gone for several days. Upon her return, Ms. Cooper felt that Ms. Lewis was very cool toward her and began communicating with her through notes or through messages to other staff. Ms. Lewis believes Ms. Cooper's work attitude changed radically after she was passed over for a secretarial position in the School Board attorney's office. On two occasions, Ms. Cooper approached Abraham Collinsworth, the Superintendent, with concerns she had about Margaret Lewis. Mr. Collinsworth referred the matter back to Dr. Scheuerer, Ms. Lewis' supervisor and the Assistant Superintendent for Instructional Services. Dr. Scheuerer told the superintendent that he had a very disruptive situation with loud conversations and people not feeling good about each other. During the several months period, July through September 1990, Dr. Scheuerer met with the women individually and together. Ms. Cooper complained that Ms. Lewis required her to make too many copies of things, that she communicated with her through yellow stickers, "post-it" notes, and that she, Ms. Lewis, would not tell her where she was going. Dr. Scheuerer counselled Ms. Cooper to adapt to her supervisor's way of doing things and also made suggestions to Ms. Lewis of ways to improve communications, for example, allowing her secretary to keep the calendar. The meeting he had with both women together was very unpleasant. It was obvious that there was a lot of hostility and animosity, tension and stress between the two. Generally, however, Ms. Lewis conducted herself in a professional manner. Ms. Cooper kept a tape recorder that she used to play subliminal tapes. Ms. Lewis felt that she was using the tape recorder to tape their conversations. Ms. Lewis felt that Ms. Cooper spent an inordinate amount of time away from her desk and abused break periods. Ms. Cooper said that she was making deliveries or copying. Ms. Lewis begin writing notes of their confrontations in order to avoid getting emotionally involved. This seemed to inflame Ms. Cooper. Ms. Cooper's reaction to direction was often either a sullen shrug or a verbal retort. Ms. Cooper felt Ms. Lewis gave her conflicting or serial requests. She also kept notes of their interactions. Early on the morning of October 8, 1990, several employees in the area of Ms. Cooper's and Ms. Lewis' office overheard a verbal confrontation between the two. Ms. Cooper had her voice raised and when Ms. Lewis asked her not to talk so loud, she replied she wanted everyone to hear. It was obvious to Daniel Scheuerer, who also overheard part of the confrontation, that Ms. Cooper was the one doing the yelling. On October 9, 1990, Ms. Lewis gave Ms. Cooper the following written reprimand: This is a formal letter of reprimand as a result of your unacceptable behavior on the morning of October 8, 1990. It is being issued as a result of your intentional (you stated that you wanted to be heard by everyone when I asked you to lower your voice) vociferous and disruptive shouting at me in your work area and the disrespect which you displayed toward me as your supervisor after I had made reasonable requests. This type of behavior is unacceptable, disturbing and disruptive to the work effort of the department and the entire area. This is to inform you that any similar outburst of this matter will result in your immediate termination. CC: Personnel File (Petitioner's exhibit No. 5) Sometime around the end of September, or early October, Karen Denbo, the district Equal Employment Opportunity Officer, had a secretarial position open that would have been a lateral transfer (same level, same pay) for Janice Cooper. She applied, and Dr. Scheuerer asked Ms. Denbo to interview Ms. Cooper. Ms. Denbo asked if he was telling her to hire Ms. Cooper. Dr. Scheuerer was given the impression by both Ms. Cooper and Ms. Denbo that they had misgivings about Ms. Cooper performing in a position requiring a lot of technical filings for which there would be no training. Ms. Cooper was not offered the transfer and no other efforts were made to find Ms. Cooper alternative employment. On October 26, 1990, Ms. Lewis gave Janice Cooper a memorandum titled "Job Expectations." It informed her that her supervisor had concerns regarding job performance, relationships with other employees, work attitude and failure to follow administrative directives. It directed her to take specified times for break and it stated she must be accurate, careful, effective and courteous. It stated that her performance was not satisfactory and warned that "failure to make necessary adjustments will result in additional disciplinary action." (Petitioner's exhibit No. 6) On November 1, 1990, near the end of the work week, Ms. Lewis needed some coping done and could not find Janice Cooper. She filled out a copy request form and put Ms. Cooper's name as the contact person. Ms. Cooper returned and Ms. Lewis asked if the form was completed properly. Ms. Cooper looked at it and then replied, "It if says what you want it to say, then its alright." After Ms. Lewis returned to her office, Ms. Cooper followed her in and said if she was going to use her name she needed to get her permission first. As Ms. Lewis began writing down Ms. Cooper's comments, Ms. Cooper reached across the desk, knocking off pencils and paper, and tore the paper out of her hand. Ms. Lewis reached for the phone and asked Dr. Scheuerer to come immediately. Ms. Cooper left and did not return until November 5th, after the weekend. In the meantime, Ms. Lewis met with Dr. Scheuerer; the Assistant Superintendent of Personnel, Jerry Copeland; and the Labor Relations Director, Bob Barrett. Upon Ms. Cooper's return to work, Ms. Lewis called her in to her office. Bob Barrett was also present. She was given this letter: November 5, 1990 Ms. Janice Cooper, Secretary Vocational Education Department Dear Ms. Cooper: This is to inform you that your employment with the School Board of Brevard County is terminated effective immediately, November 5, 1990. The reason for this termination is your unsatisfactory performance. You have been counseled and warned on several occasions regarding the need to improve your performance. On October 26, 1990, you were provided a memorandum which outlined your responsibilities and gave you direction for improving your performance. You were notified that your performance was unsatisfactory and that your failure to make the necessary adjustments would bring additional disciplinary action. Since October 26, 1990, your performance has continued to deteriorate to the point that your unwillingness to make the effort required to function as a Secretary III necessitates this action. Prior to your departure from the work site today, you should turn in any keys or other such School Board material which was issued to you to uses in your job. Sincerely, Margaret Lewis Director, Vocational Education (Respondent's Exhibit No. 2) (emphasis in original) When asked if she had anything to say, Ms. Cooper made no response and refused to acknowledge receipt of the letter. She was directed to collect her personal items and to leave the office. With guidance from the State Department of Education, the Brevard County School District has a policy of discipline of all employees which it calls, "NEAT." The acronym stands for the right to "Notice," followed by "Explanation," followed by "Assistance," within a reasonable "Time." If the deficiencies are not corrected at the end of this process, the employee may be terminated. The School Board's adopted rule 6Gx5-7.05, provides in pertinent part: Suspension/Dismissal. A certificated employee may be suspended or dismissed at any time during the work year pursuant to provisions set forth in Florida Statute 230.33(7)(h), 231.36(4)(6) and the Rules of the Educational Practices Commission. A classified employee may be dismissed for cause. The immediate supervisor shall suspend the employee and notify him/her in writing of the recommendation for dismissal, stating the cause. Termination Date. The effective date of any termination of employment or suspension shall be the last day on which the employee works. (Respondent's Exhibit No. 1) In addition to the above, the School Board's administrative staff acknowledge an employee's right to a pre-termination process that gives her an opportunity to explain why she should not be terminated. The record in this proceeding establishes that Janice Cooper was insubordinate on several occasions. She yelled at her supervisor, disrupting the workplace; she refused to follow instructions or was insolent; and finally, she virtually assaulted her supervisor when she grabbed the paper and tore it up. There is little specific evidence, however, of her poor job performance. Her only evaluation during the ten months of her employment was exceptionally positive. The "Job Expectations" memorandum was provided four days before the incident leading to Ms. Cooper's separation, which incident was plainly insubordination or misconduct, but not "poor job performance." The administrative staff make no apparent distinction between "termination" and "suspension" as both are separations from employment; and they do not view Ms. Lewis' letter, therefore, as a violation of the policy described in paragraph 18 above. Practically, there is no distinction, as no separation is final until the Board takes its action. In the meantime, the employee is no longer on the payroll. In Ms. Cooper's case, the time off of the payroll has been two years, most of which time has been the result of circumstances beyond the control of the School Board. Neither before, nor immediately after her termination by Margaret Lewis, was Janice Cooper offered reasonable opportunity to explain why she should not be terminated. She was given the letter and asked if she had a response. The letter states that termination is a fait accompli. She did not respond, and was told to leave. No evidence was presented as to the need to take immediate action. Both the district and Ms. Cooper could have benefited from a brief cooling off period; the district, by taking the time to draft a letter reflecting the proper cause for its action; and Ms. Cooper, by having an opportunity to reflect on her employment jeopardy and to prepare a response. The district presented evidence sufficient to support a finding of cause to terminate Ms. Cooper. It did not, however, prove that the cause was "poor performance." For that reason, and because the employee was not offered a reasonable opportunity to respond, the termination procedure was fatally flawed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Brevard County enter its final order reinstating Janice Cooper to full back pay and benefits from November 9, 1990, until and including October 7, 1992, and approving her termination effective October 7, 1992. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January 1993. MARY CLARK 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 20th day of January 1993. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in Paragraph 1. Adopted in Paragraph 3. Adopted in Paragraph 4. Adopted in substance in Paragraph 7. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 8. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 11. With the exception of the October 26, 1990 memo, the facts proposed here are rejected as unsupported by the weight of evidence. Poor performance was not proven, nor was it proven that Respondent was taping conversations, rather than playing her own "subliminal tapes." Adopted in substance in Paragraph 14. Adopted in substance in Paragraph 16. Rejected as irrelevant and immaterial. Moreover, there was some mention of a grievance, but no evidence of what this process was or whether it was actually filed and withdrawn. Adopted in Paragraph 17. Rejected as contrary to the weight of evidence, as to unsatisfactory job performance, which is distinguished, according to the School Board's witness, from "insubordination" or misconduct. (Transcript, p. 70-71) Rejected as contrary to the weight of evidence. Respondent's Proposed Findings Adopted in Paragraph 1. Adopted in substance in Paragraph 16. Adopted in Paragraph 18. 4-8. Rejected as argument or conclusions, or summary of testimony rather than discrete findings of fact. Some of those arguments and conclusions have been adopted in the conclusions of law herein. COPIES FURNISHED: Harold T. Bistline, Esquire Building E 1970 Michigan Avenue Cocoa, Florida 32922 F. Michael Driscoll, Esquire Suite 58 3815 North Highway One Cocoa, Florida 32926 Abraham L. Collinsworth, Superintendent Brevard County School Board 2700 St. Johns Street Melbourne, Florida 32940-6699 Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating or retaliating against Petitioner based on an alleged disability.
Findings Of Fact Petitioner was hired by Respondent as a Maintenance Technician III in March 2007. He held that position until his employment ended in January 2009. Petitioner was responsible for performing maintenance duties at two of Respondent's properties. The Majestic Sun is a 96-room, 10-story high-rise. Beech Street has 48 units in 24 two-story buildings. Both properties are located in Destin, Florida. A Maintenance Technician III is required to perform a wide range of maintenance duties. The position involves the following: (a) moving and lifting furniture, refrigerators, stoves, televisions, and washers and dryers; (b) stooping and kneeling to repair toilets, sinks, water heaters and air conditioners; (c) climbing on ladders to change light bulbs, repairing ceiling fans and performing other work; and (d) climbing stairs. The written Job Description Summary for the Maintenance Technician III position describes the physical requirements as follows: “Lift and carry up to 50 pounds; stand, sit and walk for prolonged periods of time; climb up and down several flights of stairs; frequent reaching, stooping, bending and kneeling; manual dexterity and mobility; extensive prolonged standing and walking.” Petitioner injured his knee in a job-related incident on September 6, 2008. He was treated at the Destin Emergency Care Center and placed on restrictions requiring “no work for now.” He was unable to work for approximately a week and a half. On September 17, 2008, Petitioner was given a Workers’ Compensation Uniform Medical Treatment Status Reporting Form imposing medical restrictions of no lifting, pushing or pulling greater than 10 pounds, and no ladders or stairs for four weeks. With those restrictions, Petitioner returned to work on light duty on September 18, 2008. While on light duty, Petitioner was given only those functions of his job that did not require him to exceed his medical restrictions. Other employees had to perform all of Petitioner’s other functions. Petitioner's work restrictions were extended for another four weeks by a Workers’ Compensation Uniform Medical Treatment Status Reporting Form dated October 15, 2008. The October 15 form imposed the same medical restrictions as the September 17 form. Petitioner aggravated his knee injury approximately a week later. On October 22, 2008, he was given a Workers’ Compensation Uniform Medical Treatment Status Reporting Form imposing the following work restrictions: (a) desk duty only; no lifting, pushing, or pulling at all; and (c) no standing or walking for more than 15 minutes at a time. Petitioner returned to work for a day or two after being restricted to desk duty. Respondent, however, had no desk-duty position available for him, so Petitioner was placed on a leave of absence beginning October 24, 2008. Petitioner requested leave under the Family Medical Leave Act (FMLA). His request was denied on November 21, 2008, because he did not provide all of the required information. The obligation to provide that information is the employee’s. FMLA leave was denied not by Respondent but by Cigna, which is a third-party administrator for these benefits. Because FMLA leave had been denied, Petitioner’s employment was protected from termination for only 30 days from the date he went on leave, through November 24, 2008. Employees receiving workers’ compensation benefits are not protected from termination. If a worker is not on FMLA leave, Respondent's policy is that he or she may be terminated after 30 days of leave. Even though Respondent could have terminated Petitioner after November 24, 2008, it did not do so. Petitioner was medically restricted to desk duty throughout November and December 2008. He remained on a leave of absence during that time and began receiving workers’ compensation benefits from the date his leave of absence commenced. On December 16, 2008, Petitioner’s supervisor, John Diaz, e-mailed the Assistant Resort Manager at the Majestic Sun to ask about Petitioner’s status. Mr. Diaz had hired a temporary employee to cover for Petitioner while he was on leave. The cost of the temporary employee was significantly more than the cost of a regular employee. Mr. Diaz was concerned about the impact of the temporary help on his budget. Mr. Diaz also was concerned about the lack of information that he had received regarding the date Petitioner would return to work. Mr. Diaz's inquiry was forwarded to Raina Ricks, a Human Resources Generalist in Respondent’s Human Resources (HR) Department. Ms. Ricks responded on December 16 and 18, 2008, reporting that Petitioner’s physician had recommended surgery. She expected to have information about his surgery schedule and recovery period within a few days. The next day, December 19, 2008, Ms. Ricks e-mailed Melanie Doubleday, an Analyst in Respondent’s HR Department, to ask about Respondent’s policy on the length of time an employee can remain on active status and not be terminated while unable to work due to a job-related injury. Ms. Doubleday is located in Respondent’s office in Orlando, Florida. Ms. Ricks asked Ms. Doubleday at what point Petitioner would possibly be terminated if he could not return to work soon. Ms. Doubleday responded on December 22, 2008, providing Respondent’s approved guidelines for processing workers’ compensation injuries. She explained that if the employee is eligible for FMLA, they would remain on workers’ compensation for the duration of their FMLA leave and not be terminated during that leave. If not eligible for FMLA, the employee would receive 30 days of leave. Ms. Ricks updated Mr. Diaz and Chrysse Langley, the Resort Manager, by e-mail the following day, December 23, 2008. Ms. Ricks explained that, since Petitioner’s FMLA leave had been denied, he was subject to termination 30 days following the commencement of his leave on October 24, 2008. Ms. Ricks had also been told by Petitioner’s workers’ compensation caseworker that they still did not have an exact date for Petitioner’s surgery, but that once the procedure was complete, he should be able to perform his normal job duties without restrictions within two to four weeks, or six weeks at the most. Ms. Ricks asked Mr. Diaz and Ms. Langley for their thoughts on terminating Petitioner. Mr. Diaz responded later that day, stating that he was “not trying to have [Petitioner] terminated.” Mr. Diaz's concern was that he had not received any information about when Petitioner would be required to return to work, and Petitioner himself did not seem particularly motivated to return. If Petitioner could return to work without restrictions within eight weeks, Mr. Diaz was prepared to “live with that.” Ms. Langley also responded later that day and confirmed that she and Mr. Diaz both wanted to keep Petitioner, if feasible. She also said that Respondent should proceed with hiring the temporary employee who had been covering for Petitioner during his absence, because Mr. Diaz was planning to terminate one of the other Maintenance Technician III’s for poor job performance. Subsequently, the temporary employee was hired to replace the other Maintenance Technician III. Two weeks later, on January 5, 2009, Ms. Doubleday e-mailed Ms. Ricks regarding Petitioner’s “exhausted leave of absence.” She said Petitioner was entitled to 30 days of leave and must then either return to active status or be terminated. For consistent application of Respondent’s policies, she instructed Ms. Ricks to send Petitioner a Return to Work/Administrative Termination Letter. Ms. Ricks’ employment with Respondent ended a few days later as part of a corporate restructuring. She did not send the “Return to Work” letter before she left. Denise Sniadecki, one of Respondent's HR Managers, assumed Ms. Ricks’ responsibilities. She did not know about Ms. Doubleday’s earlier e-mail or the denial of Petitioner's FMLA leave. Respondent’s HR system, Oracle, showed Petitioner's employment status as “Leave - Workers Comp - FMLA,” indicating that he was on FMLA leave, despite the denial of his FMLA application two months earlier. Ms. Sniadecki thus assumed Petitioner was nearing the end of his FMLA leave, which would have expired on January 24, 2009, 12 weeks after his medical leave began on October 24, 2008. Ms. Sniadecki e-mailed Ms. Doubleday on January 20, 2009, asking what letter she should send to Petitioner in light of the fact that his leave would soon be ending. After a further exchange of e-mails, Ms. Sniadecki e-mailed Ms. Doubleday on January 21, 2009, and explained that Petitioner was listed in Oracle as being on FMLA leave, that he had not been terminated after 30 days, and that she was just getting involved because of Ms. Ricks’ departure. She asked whether she should process Petitioner’s employment as having been terminated 30 days after his leave commenced on October 24, 2008. Ms. Doubleday responded later that day. She said that Petitioner’s status should be changed in Oracle to "WC/Non FMLA" and suggested he be terminated that day. Coincidently, Petitioner came to the workplace that same day, January 21, 2009, to drop off his latest Workers’ Compensation Uniform Medical Treatment Status Reporting Form. Petitioner's knee surgery had taken place a week to 10 days earlier. The form he brought in on January 21, 2009, imposed job restrictions of no lifting, pushing or pulling greater than 10 pounds, no ladders, and limited kneeling or squatting for four weeks. Mr. Diaz informed Ms. Sniadecki of Petitioner’s new work restrictions by e-mail that day. Mr. Diaz was not comfortable having Petitioner return to work on light duty because the medical restrictions severely limited his ability to do what the job required and he might further injure his knee. Mr. Diaz assumed Respondent still planned to administratively release Petitioner later that week. Mr. Diaz copied Ms. Langley on the e-mail. Ms. Langley responded a short time later, stating that there was no position that would fit Petitioner’s latest job restrictions. Ms. Sniadecki responded shortly afterward and told Mr. Diaz that Petitioner “will not be returning as we do not have light duty available for him.” Petitioner was terminated effective January 24, 2009. Ms. Doubleday and Ms. Sniadecki made the decision to terminate Petitioner based solely on the application of company policy. Mr. Diaz was not involved in the decision to terminate. Ms. Sniadecki sent Petitioner a letter dated January 26, 2009, stating he had been administratively terminated for failure to return from leave because he could not perform the essential functions of the Maintenance Technician III position with his medical restrictions. The reference to failure to return from leave referred to Petitioner’s inability to return to work without medical restrictions. Petitioner was invited to reapply for employment upon receiving a release to return to work. All of this was consistent with Company policy. Petitioner continued to be subject to medical restrictions for six months after his employment with Respondent ended. According to Workers’ Compensation Uniform Medical Treatment Status Reporting Forms given to Petitioner in March and April 2009, he was subject to restrictions against lifting, pushing, or pulling greater than 20 pounds until the end of July 2009. The form given to him on July 29, 2009, stated he had reached maximum medical improvement and imposed a permanent restriction against pushing, pulling or pulling greater than 50 pounds. He was given a two percent permanent impairment rating of the body as a whole. Petitioner never reapplied to Respondent for employment. He continued to receive workers’ compensation benefits until he reached maximum medical improvement. At the time of the hearing, Petitioner had found other employment. Petitioner presented no credible evidence showing that he has a disability for purposes of the Americans with Disabilities Act (“ADA”) or the Florida Civil Rights Act (“FCRA”). To the contrary, he testified that, as of January 21, 2009, the date he attempted to return to work, he believed he could do everything the job required, with the possible exception of squatting down. Petitioner failed to present persuasive evidence that he has any impairment that substantially limits one or more major life activities. Petitioner likewise failed to demonstrate that he was a qualified individual for purposes of the ADA or FCRA. At the time he was terminated, Petitioner was subject to medical restrictions prohibiting him from lifting, pushing or pulling greater than 10 pounds, using ladders, and kneeling or squatting for more than a limited period of time. These are essential functions of the Maintenance Technician III position. The greater weight of the evidence demonstrates that Petitioner was unable to perform the essential functions of the job at the time he was terminated, either with or without a reasonable accommodation. Petitioner presented no evidence that he engaged in any protected activity that would support a retaliation claim. When asked why he thought Respondent had retaliated against him, Petitioner responded that it was “because of his injury” and “because [Mr. Diaz] was upset because he didn’t have the staff to do the job.” Even if this testimony is accepted as true, it does not constitute protected activity and will not support a claim for retaliation. In addition, Petitioner failed to demonstrate a causal connection between his termination and any protected activity. The greater weight of the evidence demonstrated that Petitioner was terminated because he could not perform the essential functions of the Maintenance Technician III position, not because he engaged in any sort of protected activity. Petitioner failed to prove any facts to support a retaliation claim. Petitioner attempted to demonstrate that other injured employees received more favorable treatment than he did. None of the alleged comparators identified by Petitioner was similarly situated to him. One of them had a knee injury, but her position required that she work at a desk, so the injury did not interfere with her ability to perform the essential functions of her job. The other alleged comparators were maintenance technicians, but none of them had an injury like Petitioner's that required a lengthy leave of absence. None of them was subject to medical restrictions limiting them to desk duty for even a short period of time. Even if the other employees were similarly situated to Petitioner, such a showing would not support a claim of discrimination or retaliation. Petitioner would need to present evidence demonstrating that non-disabled employees were treated more favorably than he was, and he did not do that. In short, Petitioner failed to identify any comparators that would support his claim for discrimination or retaliation.
Recommendation Based upon 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. DONE AND ENTERED this 18th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 18th day of August, 2010. COPIES FURNISHED: Derek Griffin 1136 Sweetbriar Station Fort Walton Beach, Florida 32547 Jae W. Im, Esquire Wyndham Vacation Ownership 8427 South Park Circle, Suite 500 Orlando, Florida 32819 W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondent discriminated against petitioner on account of her race in not promoting her to executive director, denying her a salary increase, threatening her with a demotion and/or placing her on medical leave?
Findings Of Fact At the time and place noticed for hearing, petitioner failed to appear and nobody appeared on her behalf.
Recommendation It is, accordingly, recommended that the FCHR enter an order denying the petition for relief. RECOMMENDED this 22nd day of January, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1992. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Anita I. Parker 7740 Southside Blvd., #501 Jacksonville, FL 32256 Glenn R. Padgett, Esquire Kinsey Vincent & Pyle P.O. Box 3096 Daytona Beach, FL 32018-0096
The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issues are whether subject matter jurisdiction exists in this proceeding, and, if so, whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner is the agency responsible for the School District of Hendry County, Florida (the District). Petitioner employed Respondent in the District as a custodian from July 8, 1997, until April 4, 2006. A custodian is an educational support employee as defined in Subsection 1012.40(1)(a), Florida Statutes (2005). The alleged grounds for the termination of Respondent's employment may be fairly summarized as involving two unauthorized absences during the workdays of March 15 and 16, 2006. On March 17, 2006, the principal met with Respondent in the principal's office. The assistant principal and head custodian were also present. Respondent declined the opportunity to have a union representative present. By letter dated April 24, 2006, the District superintendent provided Respondent with written notice that Petitioner had terminated Respondent's employment on April 4, 2006 (written notice of termination). By letter dated April 28, 2006, Respondent's counsel requested an administrative hearing (the request for hearing). Respondent challenges the subject matter jurisdiction in this proceeding.1 The facts relevant to Respondent's jurisdictional challenge are undisputed.2 Petitioner did not request the assignment of an ALJ within the statutorily prescribed 15-day time limit. When Petitioner did request DOAH to assign an ALJ, the 60-day time limit for commencing the hearing had already expired.3 Petitioner requested the assignment of an ALJ on August 7, 2006, approximately 101 days after receiving the request for hearing from Respondent.4 Subsection 120.569(2), Florida Statutes (2005), required Petitioner to request the assignment of an ALJ within 15 days of the date Petitioner received the request for hearing. The timeline for conducting the administrative hearing is prescribed in the Collective Bargaining Agreement 2004-2007 between the District School Board of Hendry County and the Hendry County Support Personnel Association (the CBA). Subsection 1012.40(2)(c), Florida Statutes (2005), provides, in relevant part: In the event a district school superintendent seeks termination of an employee, . . . [t]he appeals process shall be determined by the appropriate collective bargaining process . . . . Section 8.074 in the CBA prescribes the procedures for conducting a hearing if one is requested by a terminated employee. The procedures prescribed in the CBA are substantially the same as those in Subsections 1012.33(3)(f)4.a. and b. and 1012.33(6)(a)1. and 2., Florida Statutes (2005). In relevant part, the CBA provides: The Employee shall be entitled to a hearing at the Board's election in accordance with one of the following procedures: A direct hearing conducted by the Board within sixty (60) days of receipt of the Employee request. The hearing shall be conducted in accordance with the provisions of FS. 120.57(1)(a)1. A majority vote of the membership of the Board shall be required to sustain the Superintendent's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within sixty (60) days of receipt of the Employee's request in accordance with FS. Chapter 120. The recommendation of the hearing officer shall be made to the Board. A majority vote of the Board shall be required to sustain or change the hearing officer's recommendation. The determination of the Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. This is the exclusive procedure for termination, except that the Employee shall have the right for Judicial Appeal under FS. 120.68. The Association shall be notified when any Association member is to be terminated. Petitioner's Exhibit 11. Petitioner elected to refer the request for hearing to DOAH in accordance with Section 8.074b. of the CBA. However, Petitioner did not refer the matter to DOAH until August 7, 2006, approximately 101 days after receiving the request for hearing. By waiting more than 60 days to refer the matter to DOAH, Petitioner prevented DOAH from conducting the hearing within the 60-day time limit prescribed in the CBA and incorporated by reference in Subsection 1012.40(2)(c), Florida Statutes (2005). Respondent did not raise his jurisdictional challenge until the administrative hearing was conducted on September 20, 2006. The sole issue that Respondent included in the Joint Pre-Hearing Stipulation filed with DOAH on September 19, 2006, is whether Petitioner had just cause to terminate the employment of Respondent. If the requirement to conduct the hearing within the 60-day time limit were jurisdictional, judicial authority discussed in the conclusions of law would make it unnecessary for Respondent to raise the issue before the hearing. If the requirement were procedural, judicial authority discussed in the conclusions of law would require Respondent to show that the failure to comply with the 60-day time limit prejudiced Respondent by impairing the fairness of the proceeding or the correctness of the agency action. For reasons stated in the conclusions of law, both the 15-day time limit for referring the matter to DOAH and the 60-day time limit for conducting the hearing are procedural rather than jurisdictional. The untimely referral and hearing did not prejudice Respondent. Petitioner had just cause to terminate the employment of Respondent. Respondent engaged in two unauthorized absences from work on March 15 and 16, 2006. The two absences exceeded 4.5 hours. Respondent worked at LaBelle High School (LaBelle) on March 15 and 16, 2006. Respondent worked during each day from 2:00 p.m. until 10:00 p.m. The workday included one unpaid meal break for 30 minutes and two 15-minute paid breaks. The breaks could be taken at any time during the workday and could be combined into a single one-hour break. Respondent was required to sign in and out on a form (sign-out sheet) when Respondent left campus during any period of his workday other than the unpaid 30-minute meal break. Respondent was absent from work on March 15, 2006, for a period in excess of three hours and was absent from work the next day for approximately one hour and fifty minutes. The absences were unauthorized because each exceeded one hour and because Respondent did not complete the sign out sheet when he left campus. Rather, Respondent made entries in the sign out sheet indicating he was present from 2:00 p.m. until 10:00 p.m. On March 15, 2006, Respondent left work for a period that exceeded three hours. Respondent borrowed a carpet cleaning machine from LaBelle in accordance with school policy. Respondent took the machine home, as he was authorized to do, but remained absent from work for a period that exceeded three hours. The second unauthorized absence occurred on March 16, 2006, when Respondent was absent from work from approximately 5:30 p.m. until about 7:20 p.m. The principal of LaBelle was attending a baseball game at school that evening and was unable to locate Respondent on campus during three separate searches. The searches included Respondent's work area and bathrooms. The work cart assigned to Respondent was not moved during the three searches. At approximately 7:45 p.m., the principal observed that Respondent's truck had been returned to its parking space. Respondent had a history of leaving campus during the workday. The principal had previously established the sign-out sheet protocol so that others would be able to locate Respondent during the workday. The head custodian also required each custodian to leave a note disclosing when a custodian leaves campus and the reasons for the absence. The head custodian would be able to read the note when he arrived at work the next morning and would be able to explain the circumstances of the absence if asked by a school administrator. Respondent did not comply with the required protocol on March 15 or 16, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as an educational support employee. DONE AND ENTERED this 11th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th of December, 2006.
Recommendation The Hearing Officer would, based on the foregoing Findings of Fact and Conclusions of Law, recommend that no action be taken because Dr. Evangelakis has not suffered a demotion or other personnel action appealable to the Career Service Commission. DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1976. COPIES FURNISHED: Douglas E. Whitney, Esquire HRS, Legal Services 1323 Winewood Blvd. Tallahassee, Florida 32301 E. Leonard Fleet, Esquire 4001 Hollywood Blvd. Hollywood, Florida 33021 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel & Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue in this case is whether Petitioner was overpaid in the amount of $809.46; and, if so, whether she should be required to repay that amount to Respondent.
Findings Of Fact At all times material to this matter, Petitioner was a career service employee of Respondent until her separation in October 2018. Petitioner went into labor unexpectedly in December 2017, and as a result, she began maternity leave. Petitioner was not present at work and did not submit a timesheet for the timeframe of December 29, 2017, through July 2, 2018. Petitioner testified that she was unable to submit her timesheets electronically and for this reason, someone else submitted them on her behalf. The evidence presented at hearing did not show who submitted her timesheets. By May 23, 2018, Petitioner had exhausted all of her annual, sick, and donated leave. Once an employee of Respondent no longer has sick leave remaining, annual leave is used to cover any shortages of sick leave. An employee may use donated leave to cover any shortages. Once an employee has exhausted annual, sick, and donated leave, the employee cannot be paid for additional time taken as leave. The additional time during leave is considered “leave without pay” (“LWOP”). Petitioner was placed on LWOP from March 23, 2018, through July 2, 2018, because she had exhausted all of her leave. Although Petitioner was on LWOP during the pay period of May 4, 2018, through May 17, 2018, a pay warrant for 80 hours of work was inadvertently issued on May 25, 2018, for that pay period. Consequently, Petitioner was overpaid $809.46. Petitioner was not responsible for the overpayment. She did not submit her timesheets and, thus, did not falsify them. Petitioner testified that her supervisor verbally advised her that she had received donated leave, but she could not recall the amount. Petitioner also did not offer any written representation from her supervisor or otherwise regarding her leave. The overpayment resulted because Petitioner's timesheet for LWOP for the pay period of May 4, 2018, through May 17, 2018, was not timely approved. Upon discovery of this error, Respondent’s human resources office conducted a manual audit of Petitioner’s leave. Ms. Anderson completed the leave audit and discovered that Petitioner had been overpaid for the May 4, 2018, through May 17, 2018, pay period. On May 30, 2018, the Department sent Petitioner a certified letter requesting the overpaid amount of $809.46. Petitioner became aware of the error when she received the Department’s letter. Petitioner’s pay was transmitted to her bank account electronically via direct deposit. However, she was not monitoring her bank account closely and did not immediately realize that she had been erroneously overpaid. At the time of the final hearing, Petitioner had not paid the overpayment. Petitioner stated she could only pay $40 per month to repay the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final Order requiring Shanace Isaac to repay Respondent $809.46. DONE AND ENTERED this 7th day of March, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2019. COPIES FURNISHED: Shanace Isaac Post Office Box 101 Hastings, Florida 32145 (eServed) Riley Michelle Landy, Esquire Department of Health Bin A-02 5052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Shannon Revels, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 (eServed) Louise Wilhite-St Laurent, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 (eServed)
