Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Secretary Specialist for Respondent. In December 1988, Petitioner planned a trip to Haiti to be married and requested annual leave for the work period of December 9 through December 14, 1988, which was approved. Although she was aware of the political unrest in Haiti, Petitioner departed on December 16, 1988 with the intent to return on December 19, 1988. When she returned to the airport on December 19, 1988, she was told that she could not obtain a boarding pass and the next available flight was not until December 22, 1988. Realizing that the delay would result in her absence for three consecutive work days without approved leave and her possible termination, Petitioner attempted to telephone her immediate supervisor. She was told that outgoing calls were limited. At around 7:00 p.m. on December 9, 1988, she was successful in placing the call; however, her call was not answered. She next called her next level of supervisor who also did not answer. Finally, she reached her sister who was to relay the circumstances of her delay to Petitioner's supervisor. Yet, when Petitioner's sister attempted to call the supervisor, she was unable to reach him and did not try again. On December 22, 1988, Petitioner returned to Miami and was informed that she did not have a job. Although Petitioner's airline situation might have been considered an emergency which might have allowed her leave to be continued, reasonable notice to her supervisor of her plight was still required unless the prohibition of notice itself was the emergency. Here, notice by telephone was possible. Petitioner's attempts to contact her employer, although stringent under the circumstances, failed because she did not verify that her message had been received. Thus, Petitioner's absences on December 19 through 21, 1988, were unauthorized; Petitioner abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. JANE C. HAYMAN 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 28th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1184 Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed, in part, in paragraphs 2 and 4. Subordinate to the result reached. Subordinate to result reached. Addressed in paragraph 5. Addressed in paragraph 5. Not supported by competent and substantial evidence Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. COPIES FURNISHED: Ms. Doris B. Cantave Dorcilin 1238 N.E. Krome Terrace Apartment 1 Homestead, Florida 33030 Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Alkens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 =================================================================
Findings Of Fact The Petitioner, Johnny L. Richardson, was a test technician in the receiving/inspection department of the Respondent, Group Technologies Corporation, when he became ill, had to be hospitalized, and went on a medical leave of absence on September 6, 1990. Before he was able to return to work, in addition to the illness that resulted in his initial hospitalization, the Petitioner suffered two pulmonary embolisms that required hospitization and had a lobectomy (removal of part of one lung). At the time of his ultimate discharge from the hospital, the Petitioner was diagnosed with a number of medical conditions. He had hypovolemic shock, viral myocarditis, with cardiomyopathy and right ventricular failure, pulmonary abscesses, congestive heart failure, leukocytosis, chest wall pain and pleurisy. In addition, he already had insulin dependent diabetes mellitus. Because of the length of the Petitioner's medical leave of absence, and the Respondent's needs, the Petitioner's former position in the receiving/inspection department was filled during his absence, in accordance with standard company policy. The Respondent's treating physicans released him to return to work on or about July 2, 1991. At the time, the Respondent was aware of the Petitioner's preexisting insulin dependent diabetes mellitus, and was generally aware that the Petitioner's health problems had required hospitalization and a medical leave of absence. But the Respondent did not have detailed medical information concerning the Petitioner's other medical diagnoses. On or about July 2, 1991, the Petitioner contacted the Respondent's staff nurse to advise her that he had been released to return to work. She made arrangements for him to be seen on July 8, 1991, by the Respondent's consulting physician, in accordance with standard procedures for employees on leave of absence for over 90 days. The consulting physician was a specialist in occupational medicine and had a working knowledge of the Respondent's work place and the jobs performed by its employees. He was to use this expertise and knowledge to verify that the employee could do the job he was to perform and to determine whether any restrictions or limitations were appropriate in view of the employee's medical condition. The staff nurse also advised the Petitioner to contact the Respondent's Human Resources Representative (HR Rep) to tell her that his treating physicians had cleared him to return to work. The next day, the Petitioner telephoned the HR Rep, but she was out on vacation until July 8, 1991. On or about July 8, 1991, the Petitioner was seen by the company's consulting physician. A routine medical examination was conducted, including taking a history. The Petitioner told the doctor that he had coronary heart disease, diabetes, lung abcess and hypertension and was taking various medications, including Coumadin and Lanoxin for his heart disease, Lasix and Prednisone for his chronic lung disease and breathing disorders, and insulin for his diabetes. He also reported the lobectomy. Based on the medical examination, the doctor prepared a report stating that he needed medical records from the Petitioner's treating physicians and that the Petitioner would need a job check before reemployment to ascertain the suitability of the particular job in which he was placed. In addition, the report stated that the Petitioner would have to avoid physical stress and avoid lifting heavy weight. The report also suggested that the Petitioner's exposure to chemicals may have to be limited. The doctor also filled out and gave the Petitioner a form stating that the "disposition" of the examination was that the Petitioner was to have "no duty." The Petitioner gave this form to the staff nurse, but the evidence is not clear when. On the day of the examination, before the report was sent to the Respondent's medical office, or even typed, the doctor telephoned a report to the Respondent's staff nurse. The nurse in turn telephoned the HR Rep and told her that, per the doctor's instructions, the Petitioner was not to work with chemicals and was to limit lifting to 25 pounds. The HR Rep also was advised that it would be best for the Petitioner not to work night shifts due to the medications he was taking. As can be seen, the information on the "disposition" form was not consistent with the information in the written report or with the information in the telephonic report the staff nurse gave the HR Rep that day. The Petitioner also saw the HR Rep on July 8, 1991. (She had just returned from vacation.) It is not clear from the evidence whether, at the time of her meeting with the Petitioner, the HR Rep already had received the telephonic report from the company's staff nurse. During the Petitioner's meeting with the HR Rep, the HR Rep told the Petitioner that she would have to determine whether the company had any test technician positions, or other positions with status and pay commensurate with the Petitioner's former position, that were open. Under company policies, employees returning to work after an extended leave of absence, during which their former positions were filled, were entitled to be considered for other positions with status and pay commensurate with the employee's former position, if any were available. The HR Rep reviewed her open requisition lists and determined that there were no suitable positions open at the time. (On or about June 28, 1991, the Respondent had extended job offers, with start dates in early July, to eight applicants for test technician positions that the company had been in the process of filling in June.) She telephoned this information to the Petitioner on either July 8 or 9, 1991, and told him that she would have to lay him off with recall rights. Actually, company policy provides for laying employees off with recall rights as a result of reductions in work force. It does not specifically apply to the situation where an employee returns to work after an extended leave of absence, during which the employee's former position was filled, and there are no positions with status and pay commensurate with the employee's former position available. But, since there was no other employment status designated by personnel policies for such an employee, the company felt that it was appropriate to lay off such an employee with recall rights. Under company policy, an employee who is laid off with recall rights has a right to be considered for recall before new employees with similar skills are hired. This is not a guarantee of reemployment but only right to be considered for employment before "external candidates" are considered. Actually, even under this interpretation of company policies, the Petitioner should have been laid off with recall rights only if he was ready to return to duty with restrictions (as indicated in the consulting physician's written report, and in the telephonic report from the staff nurse to the HR Rep). If he was unable to return to duty at that time (as indicated by the "disposition" form), he should have been continued on medical leave of absence. At the conclusion of their meeting on July 8, 1991, the HR Rep told the Petitioner that he would be contacted if there were any openings for him, or words to that effect. On or about July 12, 1991, the HR Rep became aware of an employee requisition request with a position with status and pay commensurate with the Petitioner's former position. She contacted the hiring supervisor and asked if he was interested in hiring the Petitioner for the position. The hiring supervisor quickly replied that he was not interested in hiring the Petitioner. Asked why not, he answered that he knew the Petitioner's attendance and performance history from having worked with the Petitioner in past years, and from knowing the Petitioner's reputation, he was not interested in hiring him. Further specifics about the hiring supervisor's reasons for not wanting to hire the Petitioner were neither given nor asked for until approximately January, 1992, which is after the filing of the Charge of Discrimination in this case. If asked, the hiring supervisor would have said that, during a period of time in which they worked together in the early 1980s, the Petitioner was frequently absent from work, frequently wandered away from his work station, and frequently could not be found when needed. Later, in the late 1980s and early 1990, the hiring supervisor had several occasions to inquire as to the reason for delays and was told that there was a bottleneck in the receiving/inspection department because the Petitioner was absent from work again. The Petitioner's absences made it difficult for those depending on the Petitioner's work to meet production deadlines. To attempt to deal with the Petitioner's absences, the company tried to get the employee in the position in the shifts before and after the Petitioner's shift to work overtime. After talking to the hiring supervisor, the HR Rep reported to her supervisor, who helped her research the Petitioner's personnel file to determine if there was "reasonable justification" for the hiring supervisor's rejection of the Petitioner on the basis given to the HR Rep. They learned from the Petitioner's personnel records that, on or about May 17, 1990, the Petitioner's supervisor counseled him that his attendance had to improve. In June, 1990, the Petitioner's performance appraisal reflected the attendance problems. It indicated some improvement but stated that further improvement was necessary for the Petitioner's attendance record to be within company norms. The appraisal also indicated that the Petitioner's performance no longer was improving, as the prior year's appraisal indicated it had been. It is not clear from the evidence whether the HR Rep and her supervisor also reviewed the Petitioner's attendance records. If they had, they would have also seen that the Petitioner was absent from work a total of 220 hours in 1989, not including 64 hours during plant shutdowns. From January to May, 1990, the Petitioner was absent a total of 46 hours, in addition to 124 hours of vacation leave without prior notice. After Sumner declined to hire the Petitioner, the HR Rep did not ask other hiring supervisors to consider the Petitioner for openings before considering external candidates. She did not tell the Petitioner that he had been rejected for the opening on or about July 12, 1991, or that his recall rights effectively had been terminated (in that she no longer was asking hiring supervisors to consider the Petitioner for openings before considering external candidates.) Nonetheless, the Petitioner was not surprised not to be recalled because he knew that employees who are laid off with recall rights are rarely recalled. The Petitioner acknowledges that he cannot prove, by direct evidence, that the Respondent discriminated against the Petitioner on the basis of a handicap or perceived handicap. Instead, the Petitioner argues that it should be inferred from the evidence that the Respondent, first, laid off the Petitioner instead of maintaining him on medical leave of absence and, second, did not recall him, in furtherance of plan to terminate his employment because of his handicap or perceived handicap. The inference the Petitioner seeks to have drawn was not proven by a preponderance of the evidence. First, as for the decision to lay the Petitioner off, there is no persuasive evidence that it would have been significantly more difficult ultimately to terminate the Petitioner's employment if the Petitioner had been maintained for the time being on medical leave of absence. Second, as to the decision not to recall the Petitioner, it was not proven that the Respondent did not recall the Petitioner for any reason other than the one articulated by the Respondent--namely, hiring supervisor Sumner rejected him for the reasons he gave. The Respondent is an equal opportunity employer and takes affirmative, proactive steps to recruit, hire and retain minorities and handicapped persons. It has completed required affirmative action plans, does adverse impact analyses on a semiannual basis, and advertises and recruits from agencies that deal with disabled persons. While the Respondent did not hire the Petitioner back after his extended medical leave of absence, it has hired others back after medical leaves of absence of 90 days or more. One employee was hired back after heart catheterization and coronary bypass surgery. Another was hired back after rupturing a disc and having back surgery. Both were returned to work with restrictions, after seeing the same consulting physician the Petitioner saw. Their medical conditions were at least as susceptible of being perceived as being handicaps as the Petitioner's. In both of those cases, the employee was able to be returned to the positions from which they had to take leave; they did not have to be laid off. Conversely, other employees who had not been on medical leave of absence but were laid off with recall rights in connection with a reduction in work force also have not been recalled. Three such employees who were laid off during the August, 1990, reduction in force were not even recommended to hiring supervisors for suitable positions that came open during the period of time in which their recall rights were effective, even though they were technically more qualified for the positions, based on their higher job grade levels, than the people ultimately hired for the jobs. The reason they were not recalled was that they had been laid off because their job performance ranked them at the bottom of the "totem pole" of employees subject to possible layoff in the reduction in force. The Petitioner survived the August, 1990, reduction in force because, based on need, no reduction was made in the receiving/inspection department. If there had been, the Petitioner would have been the first to be laid off due his rank at the bottom of the "totem pole" for the test technician positions in his department. The failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But none of those possibilities would constitute, nor do they prove, discrimination on the basis of handicap or perceived handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 15th day of September, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1224 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated to the extent not subordinate or unnecessary. Penultimate sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 10.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. As to second sentence, not necessarily all such employees see Myint on returning. It depends on the staff nurse's judgment as to the necessity. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Rejected as not proven that the policy itself "entitled" the Petitioner; rather, it was the Respondent's favorable interpretation of the policy. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20. As to the last sentence, Sumner gave some specifics at the time, but not many, as reflected in the Findings of Fact. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Accepted and incorporated to the extent not subordinate or unnecessary. (However, as to 22, at least the last time, everyone under Gonzalez got a "merit" increase, and the Petitioner got the smallest raise because his job performance ranked him the lowest on the "totem pole.") 24. First sentence, accepted and incorporated. The rest is rejected as subordinate to facts contrary to those found. 25.-27. In part accepted, but in part rejected. Rejected as not proven that the Petitioner was not considered for the July 12, 1991, opening. Sumner did consider the Petitioner and rejected him. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." But, if not "reasonable," their actions did not prove discrimination on the basis of handicap or perceived handicap. Rejected as not proven that Wilson "considered Richardson a potential problem employee because of his long illness." Rejected as not proven that the Respondent ever considered the Petitioner "unqualified." Rejected as not proven that the Respondent discriminated against the Petitioner on the basis of handicap or perceived handicap. Rejected in part as argument. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary. 28.-32. Accepted but generally subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. 8. Rejected as contrary to the greater weight of the evidence that his "performance" declined. Rather, the appraisal would indicate that the rate of improvement in his performance had declined. 9.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Generally, accepted and incorporated to the extent not subordinate or unnecessary. (The information imparted by the doctor was somewhat ambiguous.) 24.-31. Generally, accepted and incorporated to the extent not subordinate or unnecessary. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." And the Respondent's failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But, as found, those actions did not prove discrimination on the basis of handicap or perceived handicap. 32.-34. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ronald W. Fraley, Esquire Fraley & Fraley, P.A. 501 East Kennedy Boulevard, Suite 1225 Tampa, Florida 33602 Grant D. Peterson, Esquire Haynsworth, Baldwin, Johnson & Harper 1408 North Westshore Boulevard, Suite 1000 Tampa, Florida 33607 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
The Issue Whether Kennie W. McKay should be deemed to have abandoned his position and to have resigned from the Career Service on account of his absence from work on March 10, 13, 14, and 15, 1987?
Findings Of Fact Some 18 years ago, when petitioner Kennie W. McKay began working at the Dozier School in Marianna, he received a copy of the employee handbook the Department of Health and Rehabilitative Services (HRS) published at the time. A more recent edition, dated June 1, 1986, provides, in part: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness, injury, exposure to a contagious disease, or the illness or injury of a member of your immediate family. Your supervisor should also be given an estimate of the length of the absence. Medical certification may be requested. Respondent's Exhibit No. 3, p. 19. It was not clear from the evidence either that this language appeared in the edition Mr. McKay was furnished when he began work, or that he had ever seen the edition which came into evidence without objection. On June 1, 1983, the Dozier School adopted "POLICY AND PROCEDURE #:035" requiring advance approval of leave, except when "illness or a bona fide emergency" occasions the absence. In that event, the policy specifies that the employee must contact his/her supervisor as soon as possible. If he/she is unable to contact his/her immediate supervisor, the employee must contact the next higher level supervisor or someone in his/her normal chain of command. Leaving messages with the switchboard, coworkers, or other uninvolved staff will not be considered adequate notice. The employee is to notify his/her supervisor and only in situations where the employee is unable to contact the supervisor himself/herself will a call/contact from another person be acceptable. * * * (6) Employees displaying a pattern of unplanned absences may be suspected of abusing their leave privileges and may be subject to appropriate corrective action in accordance with HRSP 60-1 State Personnel Rules (Chapter 22A-8 and HRSR 60-51). Respondent's Exhibit No. 5, pp. 1 and 2. HRS has not promulgated this "policy and procedure" as an administrative rule. Direct evidence did not establish to what extent, if at all, petitioner McKay was aware of its existence or its provisions. But his efforts to reach the man he thought to be his immediate supervisor, James R. Kersey, suggest he believed he was required to try to do so. In his letter of February 23, 1987, the Dozier School's superintendent, Roy C. McKay, no relation to petitioner, advised petitioner McKay that Mr. Kersey would become his immediate supervisor upon petitioner's demotion from carpenter to house parent. In part, the letter stated: This is official notification that you are being demoted from Carpenter, position number 01082, to Houseparent, position number 01188. You are to report to Friendship House on the 10:00 p.m. to 6:00 a.m. shift, effective Friday, February 27, 1987, or the first day you return back to work. 1/ Your immediate supervisor will be Mr. James Kersey, Houseparent Supervisor I; and your days off will be Wednesday and Thursday. Respondent's Exhibit No. 1. Like Mr. Kersey, Mr. James Pyles and Mr. Jethro Pittman were house parent supervisors I assigned to Friendship House. Each supervised a different shift. Houseparent supervisors I reported to Norman Harris, who reported to assistant superintendent Pate, who reported to superintendent McKay. On every shift, an administrative duty officer has campus-wide responsibility. The administrative duty officer is also in the chain of command. Petitioner McKay did not learn until after he was told he no longer had a job that Mr. Harris was to be in the chain of command, because he did not see Mr. Harris' memorandum of March 10, 1987, until after March 16, 1987. In this memorandum, Mr. Harris advised: YOUR IMMEDIATE SUPERVISOR WILL BE JAMES PYLES, HOUSEPARENT SUPERVISOR I. YOUR NEXT HIGHER SUPERVISOR BILL BE ME, MR. NORMAN HARRIS. Respondent's Exhibit No. 8. Written communications addressed to petitioner McKay dated on and after March 10, 1987, were placed in "his box," but Superintendent McKay was aware that petitioner McKay did not see them on or before March 16, 1987. Before the superintendent's letter of February 23, 1987, gave "official notice" of the demotion, the two Messrs. McKay and others met in the Dozier School's conference room, on February 20, 1987. Petitioner McKay told those present that he had a doctor's appointment in Columbus, Georgia on March 10, 1987. As the superintendent understood it, the doctor had earlier warned against petitioner's overexerting himself, even against his walking too far. Everybody knew he was on leave on account of his medical condition at the time of the conference; he was, in fact, demoted because he was not physically able to discharge the duties of a carpenter. Evidently because he told the superintendent that he had a "sick slip through the ninth," the superintendent directed him to report on the tenth. Whoever drew the work schedule put him down as beginning his new assignment on March 9, 1987. As it happened, somebody in the doctor's office in Columbus called petitioner McKay's wife on March 9, 1987, and rescheduled the appointment for March 11, 1987. Deciding not to report for work before seeing the doctor, Kennie McKay telephoned the Dozier School on the tenth to let them know. Twice he reached Mr. Bridges, who was working the day shift as a house parent at Friendship House. He told Mr. Bridges he was not coming in to work that night. He asked each time to speak to Mr. Kersey. Each time Mr. Bridges told him Mr. Kersey was not there. Although Friendship House is the most secure cottage at the Dozier School and the locus of the school's "intensive supervision program," which is designed to calm boys down who are "in an uproar," the work on the night shift is not physically demanding. The boys are supposed to be asleep, and a house parent can call for reinforcements if problems arise. The houseparent can lock himself in a "crime cage" out of reach of the inmates, and could do his duty, which is mainly to observe, on crutches, if necessary. Nevertheless, when petitioner McKay visited the doctor in Columbus on March 11, 1987, he obtained a form from the doctor's office stating "out of work until next visit in 3 wks." Respondent's Exhibit No. 12. After he reached Marianna, he telephoned the Dozier School at 7:46 p.m. that evening. Charles Gardner, Jr., who was working as a house parent at Opportunity Cottage, took the telephone call. Mr. McKay told him he could not come to work that night, that he had been to see a doctor, that he had a doctor's excuse, and that he needed to talk to a night supervisor. While they were talking, Luther L. Spurlock, a house parent supervisor II in charge of a cluster that did not include Friendship House, entered the room, and took the phone from Mr. Gardner, who handed it to him. Petitioner McKay told Mr. Spurlock, "I'll be in tomorrow with a doctor's slip for Danny." After the phone call was over, Mr. Spurlock said to Mr. Gardner, "I'm not McKay's supervisor," or words to that effect. A form filled out toward the end of the shift stated: Kenny McKay called and said that he would be at the school tomorrow with a doctor slip to give Mr. Pate. Everything went well tonight no major problems. Respondent's Exhibit No. 10. Mr. Spurlock did not tell the petitioner that he ought to notify anybody else about his continuing absence. Kennie McKay had not been scheduled to work on March 11, 1987, in any event. His next scheduled work day was March 13, 1987. Respondent's Exhibit No. 7. On March 13, 1987, he telephoned the superintendent's office but, when told he was in a meeting, asked to speak to Bruce Gambill, Dozier School's business manager , instead. Mr. Gambill answers directly to the superintendent. He told Mr. Gambill "that he had been to the doctor and had a sick slip to be out of work." Respondent's Exhibit No. 11. Mr. Gambill asked him to bring a copy of the slip to the business office for Workers Compensation purposes ... [and] instructed Mr. McKay to contact his supervisor concerning the sick slip and being out of work. [Petitioner] said he had tried to call, but there was no answer. [Mr. Gambill] told him he needed to let his supervisor know about the sick slip. Respondent's Exhibit No. 11. Petitioner had telephoned that morning at 10:24 from Marianna, Petitioner's Exhibit No. 1, but he had not reached Mr. Pittman, the supervisor, who testified he might have been on an errand then. Whether Petitioner tried again to reach a supervisor after speaking to Mr. Gambill is not clear. James Pyles, the man who, although petitioner did not know it at the time, became the latter's supervisor on March 10, 1987, asked superintendent Roy McKay's permission to use a state car about three o'clock that afternoon to find out if Kennie McKay was going to come to work. Mr. Pyles drove to Dothan, Alabama, where he found petitioner walking around without crutches in an establishment known as Shag's. He did not tell petitioner that he had been made his supervisor or suggest that, since he did not seem to need crutches, petitioner come to work. The following night, as well, Mr. Pyles saw Mr. McKay getting around without crutches. On that occasion, too, Mr. Pyles refrained from any discussion relating to work at Dozier School. When Kennie W. McKay brought the doctor's slip, Respondent's Exhibit No. 11, to Dozier School on March 17, 1987, he was informed he no longer had a job.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration rule that Kennie W. McKay has not abandoned his position with the Department of Health and Rehabilitative Services, and has never lost his membership in the Career Service. DONE AND ENTERED this 28th day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1987.
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Barbara Calhoun, Respondent, is a Career Service employee with permanent status. She has been employed by the Petitioner since approximately 1969 and is presently employed in the capacity of a Resident Lab Assistant (RLA). Mary Ellen Weaver, Nursing Director at Sunland Center at District VII, is in charge of the nurses and other staff personnel at the Sunland Center in Orlando. Mrs. Weaver testified that she approved initially the recommendation by Mrs. Calhoun's supervisor that she be suspended for a continued pattern of absenteeism which had been documented by three previous reprimands, the first of which occurred approximately September 16, 1976. The first reprimand was an oral reprimand of September 16, 1976, and was based on an excessive pattern of sick leave in conjunction with days off. The second one occurred on November 29, 1976, and was submitted by a Mrs. Renner, R.N. and the reviewing officer on that reprimand was Mrs. Graham, R.N. III. The third reprimand occurred on February 5, 1977, a written reprimand the basis therein was excessive absenteeism, with the reviewing officers being Mrs. Renner and Mrs. Graham. (See Petitioner's Exhibits Nos. 1, 2 and 3.) Documentary evidence introduced reveals that from February 11, 1976, to June 23, 1977, the Petitioner accumulated approximately 19 days of unscheduled absences with the majority of such absences occurring in conjunction with days off and most of which were leave without pay (LWOP) because during the Respondent's approximately eight year employment tenure, she had accumulated no annual or sick leave. (See Joint Exhibit 1.) Without going into a recitation of all of the numerous days in which the Respondent was absent, the following is illustrative. On February 11, 1977, Respondent called in sick which was also without pay because she had accrued no leave. The following day the Respondent called in sick and again this absence was without pay and unscheduled. On March 6, 1977, Respondent had a friend call to advise that she was sick with the flu and again a message was sent the following day, on March 7, 1977. On March 26 the Respondent called in sick which was before she was off for two days. On April 18 the Respondent again called in ill. On May 2 Respondent requested annual leave, which was granted. On May 3 the Respondent called in sick and obtained permission to use annual leave since there was no more sick leave accrued. On May 12 Respondent called in sick and again there was no annual leave accrued to cover the absence. The following day the Respondent called in sick, which was prior to her weekend off. On June 1, 1977, Respondent called in sick after being off on May 30 and May 31. On June 16, 1977, Respondent was off and used an annual leave day, which was unscheduled and without prior approval. On June 23 Respondent called in sick, which was unscheduled. It was at this juncture that Respondent's supervisor recommended a suspension, which was approved by Mrs. Weaver and ultimately sent to a Mr. Windsor for final approval. The Respondent offered no explanation to explain, refute or otherwise contradict the numerous absences nor did she offer any proof of any kind to establish that she was in fact sick in such a sporadic form which occurred in conjunction with her days off. 1/ In view of the above, the undersigned concludes that there is competent and substantial evidence to support the Petitioner's disciplinary action directed toward the Respondent.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended the personnel action of the Petitioner, Department of Health and Rehabilitative Services, be sustained. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL 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 27th day of July, 1978.
The Issue Whether Larry Williams abandoned his position of employment with the Department?
Findings Of Fact Larry Williams worked for the Department for approximately 7 years. During the portion of 1987 that Mr. Williams worked for the Department he was employed as a Supervisor 1. Mr. Williams received a copy of an Employee Handbook upon his employment with the Department. The Employee Handbook informed the Petitioner of the rules governing absences from work, including the Department's rule that an employee will be treated as having abandoned his position if the employee is absent for 3 consecutive workdays without authorized leave. Prior to May 29, 1987, Mr. Williams was assigned to a Bridge Unit of the Department. The Bridge Unit worked out of the Ellis Road yard of the Department located in Jacksonville, Duval County, Florida. Duval County is part of the Department's District Second. By Memorandum dated May 21, 1987, Mr. Williams was informed that he was being reassigned from the Bridge Unit to the Jacksonville Maintenance Unit. He was ordered to report to the Department's sub-maintenance yard at Doctor's Inlet on May 29, 1987. Doctor's Inlet is located in Clay County, Florida. The supervisor of the Doctor's Inlet yard was G. C. Carter. James M. Griffis, a technician at the time at issue in this proceeding also worked at the Doctor's Inlet yard. During the period of time that Mr. Williams was assigned to the Doctor's Inlet yard he occupied a supervisory position between Mr. Carter and Mr. Griffis. Despite this fact, when Mr. Carter was absent from work, Mr. Griffis was placed in charge. This created a problem with Mr. Williams which he discussed with Department employees with supervisory authority over Mr. Carter. Although some efforts were made, the problem was not rectified. On July 30, 1987, Mr. Williams went to the Ellis Road yard and asked to speak with Jesse A. Mann, Mr. Carter's immediate supervisor. Mr. Williams indicated that he was having car troubles and asked if he could work out of the Ellis Road yard that day instead of going to Doctor's Inlet. Mr. Mann informed Mr. Williams that his assigned station was Doctor's Inlet and denied the request. Mr. Williams also asked for permission to drive a Department vehicle to Doctor's Inlet. This request was also denied. Although Department employees had been allowed to use Department vehicles to travel from Ellis Road to other locations, the evidence failed to prove that employees had been allowed to use Department vehicles because their cars had broken down. Mr. Mann told Mr. Williams that he could take a couple of days off in order to get his car repaired. Mr. Mann was authorized to approve leave for Mr. Williams. Mr. Williams told Mr. Mann that he did no have the money to get his car repaired and left without indicating whether he would take time off or not. On Friday, July 31, 1987, Mr. Williams did not report to work. Nor did Mr. Williams notify the Department that he would not be at work that day. On Monday, August 3, 1987, and Tuesday, August 4, 1987, the next working days after July 31, 1987, Mr. Williams did not report to work. Again, Mr. Williams did not notify the Department that he would not be at work. On occasions when Mr. Williams has taken approved leave in the past, his absence has been approved verbally. Only after Mr. Williams has returned from those absences has a written approval form been executed by the Department and Mr. Williams. By letter dated August 5, 1987, the Department notified Mr. Williams that he had been removed from his position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code. By letter dated August 12, 1987, Mr. Williams requested a formal hearing to contest the Department's decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, Larry Williams, has not abandoned his career service position with the Department. DONE and ENTERED this 16th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 16th day of February, 1988. COPIES FURNISHED: Larry Williams Kaye Henderson, P.E., Secretary 617 West 44th Street Department of Transportation Apartment 191 Haydon Burns Building Jacksonville, Florida 32208 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building Augustus D. Aikens, Jr. 605 Suwannee Street General Counsel Tallahassee, Florida 32399-0450 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact On February 4, 1991 the Petitioner met with Peter Bond the Department's Regional Toll Manager for the Tampa Bay Region and Delene Wilson the Department's Toll Facility Supervisor at the Sunshine Skyway Bridge concerning a transfer to the Tampa Bay Region from her then present position as a Toll Collector in Miramar, Florida. As a result of these meetings with Bond and Wilson, Petitioner was offered a position as Toll Collector on the Sunshine Skyway Bridge. The Petitioner preferred the first shift in order to be available to see about her children when they got out of the day care center. Wilson advised the Petitioner that there may be a first shift opening but that unless that worked out there was only a second shift available. Petitioner understood this when she accepted the position and started the process of transferring. As it turned out, the first shift did not become available and Petitioner was placed on the second shift. Additionally, Wilson was able to transfer another Toll Collector from the north end of the bridge to the south end of the bridge so that Petitioner could work the north end which was closer to her home. With everyone thinking that Petitioner's transfer would be effectuated by February 15, 1991, the Petitioner was placed on the work scheduled for February 15, 1991 through February 28, 1991. As it turned out, Petitioner's last day at Miramar was February 26, 1991. As a result, Petitioner was placed on a new work schedule of March 1, 1991 through March 14, 1991. However, because Petitioner had just moved and needed to get things straightened out, Wilson placed Petitioner on authorized leave without pay (Petitioner had no leave time accumulated) for March 1-2, 1991. Petitioner's regular days off would have been March 3-4, 1991 which required her to report for work on March 5, 1991. The Petitioner did not report for work on March 5, 1991 or at any time during the two week work schedule of March 1 through March 14, 1991. Wilson covered the Petitioner's shift on a day to day basis which did cause the other employees some hardship. From March 7, 1991 Wilson called Petitioner on a daily basis but was unable to reach anyone until March 12, 1991 when she talked to Petitioner's husband, Brian and ask that he have Petitioner call Wilson as Wilson needed her to work. Petitioner did not return this call notwithstanding that her husband gave her that message on March 12, 1991. On March 14, 1991, while Bond was in Wilson's office, Wilson called Petitioner and Petitioner answered the phone. When asked why she had not reported to work the Petitioner explained that she was attending school to better herself and that she could not work the second shift because she had no one to take care of her children after they got out of the day care center. During this telephone conversation on March 14, 1991 Petitioner requested a six month leave of absence without pay, Petitioner was advised by Bond, through Wilson, that Petitioner could file for a leave of absence without pay but she must report for work that day or otherwise she would be considered as having abandoned her position and resigned from career service which would result in her termination. Petitioner did not report for work that day, March 14, 1991 and even though she was on work schedule through March 28, 1991 did not report for work any day thereafter through March 28, 1991 when she was advised by Bond of her termination by letter referred to in Finding of Fact 2 above. Petitioner understood that her transfer would not cause a break in service and that any time off had to be on her regular days off or by authorized leave of absence. Petitioner also understood that since she had no accumulated annual leave any leave time would have to be sick leave or authorized leave of absence without pay. Except for March 3-4, 1991, Petitioner neither applied for, nor was granted, any sick leave or unauthorized leave of absence without pay between March 1, 1991 and March 28, 1991. Between March 1, 1991 and March 28, 1991 the Petitioner was attending school and working on jobs other than with the Department that allowed her to work the first shift. There is sufficient competent substantial evidence to establish that Petitioner intended to abandon her position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Department of Administration enter a Final Order (1) finding that Petitioner did abandon her position with the Department and resigned from career service, and (2) denying the Petitioner any relief. DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER 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 the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Petitioner did not submit any proposed findings of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. As to the receipt of letter it is adopted in Finding of Fact 3. As to reading the letter the date was sometime around April 6, 1991 and in that regard proposed finding of fact 2 is rejected. See Finding of Fact 4. Not material or relevant since the date letter is postmarked controls and that was earlier than May 30, 1991. Covered in Preliminary Statement. - 7. Not material or relevant. Adopted in substance as modified in Finding of Fact 8. - 14. Adopted in substance as modified in Findings of Fact 9, 7, 7, 9, 10, and 9, respectively. Not material or relevant since Wilson had placed Petitioner on authorized leave of absence without pay on March 1-2, 1991. See Finding of Fact 10. - 17. Adopted in substance as modified in Findings of Fact 11 and 12, respectively. Not material or relevant. The first phrase of proposed finding of fact 19 is adopted in substance as modified in Finding of Fact 12. The second phrase of proposed finding of fact 19 is not supported by the record but see Finding of Fact 12. While the record reflects that Petitioner may have been pregnant, the record does not reflect that her pregnancy would have prevented her from returning to work. - 23. Adopted in substance as modified in Findings of Fact 13, 16 and 12, respectively. Not supported by substantial competent evidence in the record. Adopted in substance as modified in Finding of Fact 13. Goes to credibility and not a finding of fact. 27.-28. Adopted in substance as modified in Finding of Fact 14. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Angelita K. Coley Davis 5919 S. Dale Mabry Apt. A Tampa, FL 33611 Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, the Petitioner was a Career Service employee. On January 13, 1988, while on leave from employment due to a work related injury, the Petitioner met with her new rehabilitation counselor, Irene Brzozowski. During the meeting, the Petitioner informed Ms. Brzozowski that she had an appointment scheduled with her physician at 5:00 p.m. on the following day. The purpose of the visit was to obtain a medical evaluation so that the Petitioner could return to work in a light duty capacity. The Petitioner incorrectly used the word "discharged" for the planned appointment. The counselor asserted that a "discharge" meant that the Petitioner had to return to work on Friday, January 15, 1988. The Petitioner said that her work shift began on Wednesday and that she would rather return to work on that day. The two women had different views over a decision which was a medical decision which neither woman was in a position to make. The discussion resulted from the Petitioner's misuse of a term that was accepted as a fact by the counselor. At the close of this meeting, the counselor said she would call D.H.R.S. to tell them that the Petitioner would be "discharged." The counselor went beyond what she told the Petitioner she was planning to do. On January 14, 1988, even before the medical appointment took place, the counselor misrepresented to Shirley Eaton, the administrative secretary at D.H.R.S., the following matters: That Ms. Brzozowski had seen a doctor's statement that the `Petitioner would be released on January 14, 1988. That Petitioner preferred to return to work on Wednesday, January 20, 1988, but based on the discharge, the counselor had instructed her to return to work on Wednesday, January 15, 1988. Based upon the counselor's misrepresentations, which appeared to Ms. Eaton to be predicated upon a doctor's written discharge and the Petitioner's personal knowledge that she had to return to work January 15, 1988, the Petitioner was placed on the work schedule for the following day. No one informed the Petitioner that she was scheduled for work on January 15, 1988, even before her doctor had rendered his opinion about her ability to return to work. On January 14, 1988, the Petitioner kept her doctor's appointment. During the examination, she told the doctor her work week began on Wednesday. As a result, the doctor told her he would give her a return to work date of January 20, 1988, for light duty activities. The return to work slip was partially prepared by Karen Nalewaik, a licensed practical nurse. She does not recall why she did not complete the note or why she put down the date of January 18, 1988, on the slip. The slip was signed by the doctor after it was completed by his staff and given to the Petitioner. January 15, 16, and 17 passed without the Petitioner's receiving notification that she had been scheduled to work those dates. Sometime after the Petitioner read the doctor's slip and before Monday, January 18, 1988, she noticed the return date was different from the one orally represented to her by her doctor. She did not inform her employer of the mistaken date. Instead, she returned to the doctor's office on Monday, January 18, to obtain a revised slip which accurately reflected his decision. Upon leaving the doctor's office, the Petitioner advised her employer of her return date. She was told she was unable to return because she had abandoned her position when she did not appear for work on January 15, 16 and A copy of her separation letter was given to the Petitioner on this date. The Petitioner did not abandon her employment. She had not been informed that she was to return to work without a medical evaluation. Her actions on January 18, 1988, manifest a clear intent to continue with her work duties for her employer. Her conduct between January 13, 1988, and January 18, 1988, was consistent in all respects with her testimony at hearing and her desire to remain a Career Service employee for the Respondent. The Respondent mistakenly relied on the new rehabilitation counselor who speculated, surmised, and erroneously substituted her own judgment for that of the attending physician who had been treating the Petitioner for related injuries for over three years. The doctor decided his patient could return to light duty work the following work week on January 18 or January 20 because that was when her work week began. His records show that she was not discharged and was still experiencing medical problems on January 14, 1988. Unfortunately, when the Petitioner tried to straighten this out with her employer after she was separated from her position, the counselor continued to be involved. The counselor had a new medical slip manufactured by a member of the doctor's staff on February 3, 1988, and presented it to the Respondent. The slip, which was never signed by the doctor, tended to support her prior misrepresentations that the Petitioner could return to work on January 15, 1988. Interestingly enough, the doctor's notes do not reflect the information placed on this third slip. It is also contrary to every other piece of credible evidence presented at hearing. Even during the statements under oath presented by the Respondent as the physician's deposition, the counselor was present. She interrupted the questioning at different times, educating the doctor on her version of the facts. Her slanting of the situation, as well as the endorsement of her version by Ms. Orser, a D.H.R.S. worker who also spoke during the deposition, make the doctor's deposition of April 22, 1988, unreliable. It is rejected by the Hearing Officer as incompetent and unreliable testimony due to the constant interjections of the two women with presumed facts and misinformation. The major mistake which kept reoccurring in this series of events was that various parties relied on everyone else but the attending physician to timely determine when the Petitioner could return to work. The doctor's first slip which was undated but was signed on January 14, 1988, is given great weight by the Hearing Officer. The second slip, dated only four days later, is given the greatest weight because it is consistent with all of the credible testimony presented as to why the Petitioner would be given a second note. As a result, abandonment could not have taken place on January 15, 16 and 17, 1988.
The Issue The issue is whether Respondent is guilty of insubordination for the use of excess leave and sleeping in his vehicle during working hours.
Findings Of Fact On or about April 21, 2004, Petitioner hired Respondent as a school custodian. Starting on December 11, 2007, Petitioner transferred Respondent to Toledo Blade Elementary School. One year later, Petitioner transferred Respondent to the Transportation Department, which is the building housing the transportation offices. As a custodian, Respondent is a "classified" employee. He is covered by the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and Petitioner (the contract). Twice on the morning of April 25, 2008, during working hours and not while on a break, Respondent walked from his worksite to his vehicle, climbed into the vehicle, and nodded off to sleep. The first nap lasted for about one hour, and the second nap lasted about one and one-quarter hours. The second nap ended when Respondent's boss and the boss's boss walked out to the vehicle where they found Respondent, who had put the driver's seat down, laid out in the front driver's seat, with the radio on, sound asleep. They woke him and ordered him back to work. Respondent's defenses are: 1) he was not asleep; he was unconscious; and 2) he was suffering from extreme drowsiness due to medications that he was taking following his recovery from a three-month coma into which he had fallen two years earlier. Both of Respondent's defenses are makeshift. According to Webster's online dictionary, "sleep" is the "natural periodic suspension of consciousness during which the powers of the body are restored." (http://www.merriam- webster.com/dictionary/sleep, as found on June 17, 2009) If he had suddenly lost consciousness at the worksite, no one would claim he was sleeping on the job. Instead, without reporting any difficulties to anyone, he walked out to his vehicle, made himself comfortable, and fell asleep. The problem was that his natural period of suspended consciousness coincided with time during which Petitioner was paying him. The requisite restorative effect is inferred. Nor is there any credence to the claim of a medical condition or effect of a medication that would leave Respondent unable to resist falling asleep while on duty. Although ample opportunity existed, Respondent failed, on the day in question, to bring to the attention of his supervisor any medical reason for sleeping on the job, which was exactly what he was doing. Article XXI of the contract authorizes discipline for "just cause." Sleeping while on duty, for over two hours prior to lunch, constitutes insubordination and just cause for discipline. The leave issue is more complicated. Petitioner is on a fiscal year starting July 1. For the entire year, classified, 12-month, hourly employees, such as Respondent, accrue six personal days on July 1. For sick days, these employees accrue one day at the end of July and three advance days. They then accrue a day at the end of each following month through March. Unused sick days rollover to the next year, but unused personal days do not. Personal days count against the sick days. In other words, if an employee has five sick days and six personal days and uses a personal day, he will then have four sick days and five personal days. Employees also earn vacation days. As explained by Petitioner's payroll supervisor, the payroll system facilitated recharacterizations between sick and personal days. However, the system did not incorporate vacation days in the same fashion. Thus, if an employee took off one day, without claiming sick leave, and lacked one day of personal time, the system would dock his pay, even though he might still have had sufficient vacation time to absorb the time that he had taken off. For the 2007-08 school year, Respondent used "personal leave charged to sick" as follows: September 12--8.0 hours; September 24--8.0 hours; December 20--8.0 hours; December 21-- 8.0 hours; January 30--0.5 hours; February 15--8.0 hours; and February 27--7.5 hours. On February 27, Respondent missed the entire day of work. Consistent with acceptable practices, on the next day, he submitted a form entitled, "Certificate of Absence." In it, Respondent requested approval for 8.0 hours of "personal leave charged to sick," rather than one of the other categories, such as sick leave or vacation leave. His supervisor signed the form. When the payroll supervisor checked his balances, she saw that he only had 7.5 hours of personal leave charged to sick, so, on May 2, 2008, Respondent had to sign a form entitled, "Request for Personal/Sick/Vacation Leave in Excess of Earned Leave." This form requested approval for the use of 0.5 hours of personal leave in excess of earned leave. The request was disapproved by the Director of Facilities Services with a signature bearing a date of March 13, 2008. The payroll department's practice was not to deduct personal leave charged as sick against vacation leave, if an employee consumed all of his personal leave charged as sick. On March 14, Respondent again requested 2.5 hours of personal leave charged to sick. His supervisor noted on the form that he "cautioned Tim to make sure he has the time available--Tim told me that he does. 3-14-08." By this time, it is unlikely that Respondent had received a new statement of leave balance reflecting the 0.5 hours that he had been short two weeks earlier. On May 2, 2008, Respondent signed another request for permission to use personal leave in excess of earned leave, and the Director of Facilities denied the request with a signature bearing a date of March 27, 2008. The same process took place again on April 11 for 8.0 hours on April 7. Petitioner notes that this request also violated policy regarding custodial leave on the day immediately after spring break, for which leave requests must be submitted well in advance of the leave sought. Article XVII of the contract requires a special procedure for leave on days immediately preceding and following a school holiday, but the emphasis in testimony was on the importance of adequate custodial staff on such days. However, the purpose of this policy is to address the needs of schools with respect to returning students. Because Respondent was not assigned to a school, nor had he been assigned to one temporarily for returning students, he was not undermining this policy by conforming to general policy, which allowed after-the-fact requests. In any event, as the payroll supervisor testified, it is possible that Respondent still had vacation time each time that Petitioner docked him for requesting personal leave charged as sick when he had already exhausted his personal leave. On these facts, Petitioner does not have just cause to discipline Respondent on the ground of insubordination or any other ground. There is no doubt that Respondent understood the interplay between personal leave charged to sick and sick leave, but there is considerable doubt as to, on the first two occasions on which he overdrew on his balance of personal leave charged to sick that he knew that he was doing so. Additionally, there is a reasonable possibility that he had available vacation leave, against which all of this time could have been charged; absent proof from Petitioner precluding this possibility, the entire dispute is reduced to the level of finding the proper account to debit these relatively few hours of missed work. This does not rise to insubordination, nor does it constitute just cause for discipline. Article XXI of the contract requires progressive discipline, which constitutes a verbal reprimand, written reprimand, suspension with or without pay, and dismissal. The next step in progressive discipline for Respondent is suspension with or without pay, not dismissal.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Sarasota County, Florida, enter a final order dismissing the charge of excessive use of leave and finding Respondent guilty of the charge of sleeping while on duty and suspending him, without pay, for five working days. DONE AND ENTERED this 18th day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2009. COPIES FURNISHED: Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Lisa J. Kleinberg, Esquire Law Offices of Kleinberg, Ingram & Murphy, P.L. 2189 Ringling Boulevard Sarasota, Florida 34237 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
