Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto pursuant to Section 120.57(1), Florida Statutes. Respondent has been employed as a permanent full-time employee since March 7, 1980 with Petitioner's facility, Landmark Learning Center (hereafter, "Landmark") located in Opa-locka, Florida and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. The purpose of Landmark is to train, program, and modify the behavior of retarded clients so that they may realize their fullest potential for self care and independence. Ulysses Davis is the Superintendent of Landmark. Immediately below him in the chain of command is Deborah Wicks Kahn, Residential Services Director. Hers is a supervisory administrative position also over the entire facility. Within Respondent's unit, which is one of several units within Landmark, there are other supervisors between Respondent and Deborah Kahn. Approximately 1980, Respondent was convicted in federal criminal court of bank fraud but remained at liberty pending resolution of an appeal and various post-conviction relief procedures for reduction of a three-year sentence. Respondent has had a history of leaves of absence during his employment with Landmark. The longest hospitalization established by his medical records was from January 30, 1983 to May 6, 1983 at North Miami Hospital for approximately 96 days or three months; from September 18, 1983 to September 25, 1983 (approximately six days) he was again hospitalized at North Miami Hospital. At that time, ulcer disease was ruled out by Dr. Bertram P. Shapiro (Bell Composite Exhibit 7). These hospitalizations were known to Respondent's supervisors and co-workers and occurred during periods when leave had been authorized, although the nature of the type of leave (i.e., sick leave, annual leave, disability leave, leave without pay) was not established. Everyone at Landmark seems to have known that thereafter Respondent was on medication for his stomach and assumed or had been told by the Respondent that his problem was associated with bleeding ulcers. The usual procedure followed at Landmark requires that any leave of absence of one to two days may be approved by a lower level supervisor on an employee's bi-weekly time sheet. Leaves of absence in excess of one-two days require approval of at least Director Kahn. If the leave requested will be completed within the current two-week pay period, the bi-weekly time sheet may be used by the employee to make his leave request and approval is indicated on the time sheet itself. A time sheet is signed by Director Kahn or a lower level supervisor if the shorter leave is approved, and if it is disapproved, the word "disapproved" and the supervisor's or Director's signature is signed at the bottom. So that multiple time sheets will not be tied up by extended leave requests, a separate written request is required from the employee and a separate outside proof of need therefor must be attached to the employee's written request for all leave requests in excess of a two-week period. For instance, if the request is for extended educational leave, the employee's request must be made in writing with an attached verification of the program from the educational institution. If the request is for extended medical leave, the employee's request must be made in writing with an attached doctor's statement verifying the employee's need therefor. Superintendent Davis requires that his subordinate supervisors get his approval before they grant any extended leave request. In extended leave cases, a separate approval letter is typed, signed by Superintendent Davis and sent certified mail, return receipt requested, to the employee whose leave has been approved. Director Kahn testified she habitually would approve leave requests in increments of one, two and three months after getting guidance from Superintendent Davis or the personnel office. Shortly prior to October 17, 1983, Respondent requested a leave of absence for two months which Director Kahn denied due to an agency-wide survey (inspection). She wrote on the bottom of this request that Respondent would also need to get a supportive medical statement. When the survey concluded, Respondent approached Director Kahn about a leave of absence which she said she would approve if the Respondent provided a supporting medical statement. Director Kahn understood this to be a renewal of Respondent's request for either two or three months of medical or personal leave. Respondent states he understood this to be a request for one year of medical leave, specifically October 17, 1983 through October 17, 1984. Director Kahn again asked for a supporting medical statement. Director. Kahn left on vacation for three weeks immediately following this conversation. Respondent, in response to telephoned information from his lawyer, reported to Federal Prison Camp, Eglin Air Force Base, Florida, and on October 17 and 13, 1983 was processed in accord with federal prison procedures to begin serving his criminal sentence. Part of this process is a thorough medical examination (Bell Exhibit 6) and he thereafter received extensive treatment for his medical problems, including ulcers. After Director Kahn returned from three weeks' vacation, the person she left in charge in her office presented her with a medical statement on Dr. Bertram Shapiro's stationery, dated October 17, 1983, urging that Respondent be granted a one-year medical leave of absence (Bell Exhibit 3). The date this item was stamped into the Landmark personnel office is November 10, 1983. No formal written request of Respondent for one year's medical leave was received by Director Kahn, Superintendent Davis, or the Personnel Office. Despite the absence of a formal written request from Respondent for one year to correspond with Dr. Shapiro's statement dated October 17, 1983, a letter authorizing two months' leave of absence from October 19 through December 19, 1983 was sent by certified mail, return receipt requested, to Respondent at 2146 N.W. 61st Street, Miami, Florida 33142 (HRS Exhibit 1). This letter was signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Residential Services Director, Facility II. It states that Respondent's failure to report for duty December 20, 1983 would constitute unauthorized leave and three consecutive days of unauthorized leave would result in Respondent being deemed to have abandoned his position and to have resigned his position in accord with Section 22A-7.10(2)(a), Florida Administrative Code. Petitioner's November 17, 1993 letter was delivered November 25, 1983 to 2146 N.W. 61st Street, Miami, Florida 33142 and was signed for by Respondent's sister-in-law, Vesturee Brownlee (HRS Exhibit 2). This address continued to be the legal address of Respondent from October 17, 1983 at least through the date of the hearing. Respondent admitted intentionally not notifying Petitioner of any other address where he right be reached until mid-May 1984. Indeed, Respondent and his girlfriend, Ann White, a co-employee, worked diligently until mid-May 1984 to camouflage his criminal incarceration and exact location from everyone at Landmark. Further, this address appears as his legal address on all of his federal prison incarceration documents (Bell Exhibit 6). At hearing, Respondent denied that he received the November 17, 1983 letter but it is clear that he knew its contents because approximately December 19, 1983 Respondent telephoned Director Kahn at her home and requested an extension to a full year's leave dating from the doctor's statement dated October 17, 1984. Director Kahn said three months' leave might be authorized. Despite discussing his ulcer problems, no mention of jail or his actual whereabouts was made by Respondent. Although a written request and new doctor's statement was not submitted by Respondent, his oral telephone request to Director Kahn was acted upon. On January 20, 1984, a letter (HRS Exhibit 3) was sent by certified mail, return receipt requested, to Respondent at his last known address. This letter, signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Director, authorized leave from December 17, 1983 to Friday, April 27, 1984. Instructions were given that if Respondent could not report on Monday, April 30, 1984 at 8:00 a.m., he must, prior to that date, complete a blank leave request showing his anticipated date of return and submit it to "me". Since the letter was signed by two supervisors, I interpret its intent to be that the Respondent could have submitted his completed leave request to either Superintendent Davis or Director Kahn. Again, Respondent was instructed that failure to either report for work timely on April 30 or to submit a written request for extension would result in a determination of abandonment of his position pursuant to Section 22A- 7.10(2)(a), Florida Administrative Code. Petitioner's January 30, 1984 letter was delivered on February 8, 1984 to Respondent's last known address and was signed for by Rosa L. Bell, Respondent's mother (HRS Exhibit 4). Although at hearing Respondent denied that he received Petitioner's January 30, 1984 letter, it is clear that he knew the contents thereof because in at least four telephone conversations with Landmark employees, Ann White and Leah Black, Respondent discussed the concern over his medical condition and absence from the job which had been expressed to Ms. White and Ms. Black by Director Kahn and other Landmark employees. On April 30, 1984, Respondent again did not report to work nor did he complete and submit to anyone at Landmark a written leave request form. In excess of three consecutive days Passed without Petitioner receiving any communication from Respondent. Petitioner did not report to work at any time during this period because he was still involuntarily incarcerated in Lexington, Kentucky. On May 8, 1984, a letter (Bell Exhibit 1) was sent by certified mail, return receipt requested, to Respondent at his Miami address. This letter was signed by Superintendent Davis and by Leah F. Black FOR Director Kahn in Ms. Kahn's absence. This letter, designated a "warning of abandonment letter," states that Respondent's failure to report for work or otherwise make contact after April 27, 1984 had resulted in Respondent being placed on an unauthorized leave of absence and that unless Respondent contacted the signatories with a "reasonable and acceptable" excuse for the unauthorized absence since April 27, 1984 and/or reported for work by close of business on May 17, 1984, a determination of abandonment pursuant to Section 22A-7.10(2)(a), Florida Administrative Code, must be made. Respondent was specifically cautioned that a "response is vital to your continued employment." The letter provided Respondent the option of resigning if he sent a letter of resignation by May 17, 1984. This letter was delivered on May 11, 1984, to Respondent's Miami address. It was signed for by Rosa L. Bell, Respondent's mother (Bell Exhibit 1). At hearing Respondent denied that he received Petitioner's May 8, 1984 letter but it is clear that he knew its contents and import because he admittedly signed and sent a two page typed letter dated May 16, 1984 to Superintendent Davis. (Tr. 151) This letter was received in the Superintendent's office on May 21, 1984. (Bell Exhibit 2) This was four days after the requested due date of May 17, 1984 for any excuse. Respondent's May 16, 1984 letter informed his supervisor for the first time that Respondent was serving a federal sentence for bank fraud, that he was scheduled to be released June 30, 1984; that he felt he was not guilty of crime, that he was unaware of Director Kahn having her vacation during the time when Respondent requested his leave, that he did not confide his jail problem to Director Kahn because he did not trust her, that in December Director Kahn told him she did not receive the Respondent's one year leave request letter from Donna Bailey, that Respondent had been in touch with Ms. Leah Black since 1983 and recently hand informed Ms. Black of his present location due to rumors, that before leaving Landmark, Respondent requested a leave of absence of one year, that at that time Respondent had accumulated four months of accrued leave and requested four months leave with pay and the remainder as leave without pay, that Director Kahn told him she could not approve his leave request without a physician's statement and he had attached such a statement to his letter request before he left Landmark and gave it to Donna Bailey. Superintendent Davis and Director Kahn believed Respondent to be sick until receipt of his letter dated May 16, 1984. That date is the first date either had actual knowledge of his physicial location and that he was in jail. In Respondent's absence, his supervisors were required to hire temporary employees to fill his position as Behavior Program Specialist. Sometimes they were not able to hire any temporary fill-in personnel and this created additional work for other full-time employees in covering Respondent's caseload. Sometimes the temporary help they were able to hire were not of a comparable skill level with Respondent or someone who might have taken the job full-time. As long as Respondent was on a leave of absence they were unable to advertise for a skilled full-time replacement. This had a detrimental effect on Landmark's in-depth applied behavior modification program. Superintendent Davis determined that Respondent's admission of involuntary incarceration, even if coupled with institutional medical care, did not constitute a reasonable and acceptable excuse as requested in Petitioner's May 8, 1984 letter. This determination is consistent with Landmark's internal policy. Superintendent Davis has previously refused all employees' requests for extended leave for the purpose of serving involuntary jail time. He testified that he would not have granted any of Respondent's previous leave time nor any extensions thereof if the jail sentence had been known to him. His basis for this policy is that criminal sentences are detrimental to employees' functions as role models. He applied this policy to Respondent because Respondent's position as a Behavior Program Specialist requires intensive leadership and role modeling/programming of retarded clients. Superintendent Davis also considered the Respondent's failure to disclose his incarceration to be dishonest dealing with the agency. Superintendent Davis further determined that the date of his receipt of Respondent's May 16, 1984 letter was beyond the allotted time for such excuse. Respondent maintained that he was diagnosed early on the morning of October 17, 1983 by Dr. Shapiro as needing a year's ulcer treatment, applied for and got the leave of absence from Director Kahn some time between Noon and 2:00 P.M. that same day, and thereafter, between 4:30 - 5:00 P.M., he was telephoned by his lawyer to report that very day to federal prison in Eglin, Florida. Respondent says that he had a normal appointment with Dr. Shapiro at 10:45 A.M., October 17, 1983, and at that time received the statement indicating need for a year's leave of absence (Bell Exhibit 3), returned to Landmark, wrote out on a legal pad what was apparently an explanation to Director Kahn that he wanted to use 4 months of accumulated leave with pay (annual and sick leave combined) and to receive 6 months leave without pay to cover October 17, 1983 through October 17, 1984; that he then gave this to Donna Bailey to type, that Director Kahn signed her approval on the typed letter and he returned his letter and medical letter to Donna Bailey. Stephanie Green states that she was with Respondent at the doctor's office on October 17, 1983, and saw him give his typed letter request, the medical letter, and his timesheets to Donna Bailey. Ms. Green does not recall any approval at the bottom of Respondent's letter. Ann White, Respondent's girlfriend, supports some of this information but contradicts much by saying she saw Respondent's letter request at her home on a separate occasion and saw the doctor's letter before that date when hue showed it to her at Landmark. She then says that at the end of October 1983, she examined Respondent's personnel file and saw the Respondent's typed letter request with Director Kahn's approval written at the bottom with the medical letter. These witnesses may have seen another earlier leave request, but timesheets and approval on the bottom of an employee's request would be inappropriate for extended leave request and approval. Director Kahn absolutely denies giving a year's approval in writing at any time and denies ever receiving a typed letter request for one year signed by Respondent. Her secretary was not Donna Bailey but was Sandra Williams. Based upon observation of the candor and demeanor of the witnesses testifying and their credibility or lack thereof, I choose to believe Director Kahn. Independent of the credibility of the live testimony, I also find supportive of Ms. Kahn's testimony the Respondent's admission that he gave his documents, if they were given, to someone not her secretary. Respondent further stated that at that time before his lawyer's call he intended a vacation to get away from it all instead of immediate medical care. Also clearly supportive of Ms. Kahn's testimony is Bell's Exhibit 2 wherein Respondent admits Director Kahn told him in their December phone conversation that she did not receive his letter request for a year's leave and that he was not approved for a year but might be approved for an additional three months after the original December 19, 1953 date. On June 6, 1984, Superintendent Davis sent a letter, (HRS Exhibit 5), certified mail, return receipt requested, to Respondent Bell at Antaeus Unit, Post Office Box 2000, Lexington, Kentucky, 40511. This was the return address on the envelope of Respondent's May 16, 1984 letter. At hearing, Respondent denied receipt of this letter but was admittedly incarcerated by the federal government at that location at that time and did not return to Miami until June 17, 1984. Petitioner's June 6, 1984 letter was received at that address on June 11, 1984, and was signed for by "D.D. St (illegible)" (HRS Exhibit 5). The undersigned finds that Respondent did receive on that date Petitioner's June 6, 1984 letter which stated that Respondent's failure to report on April 30, 1984, and thereafter was now considered abandonment of his position under Section 22A- 7.10 (2)(a) and that he was deemed to have resigned as of the date the letter was received or date it was returned to Petitioner if that occurred. The undersigned is not impressed by Respondent's analysis of Bell Exhibit 5. This item was found among Petitioner's business records, in Respondent's Personnel file. It is a handwritten, undated memorandum which reads in one handwriting "N. Bell went out on med. leave but last med slip is 10/83. Needs one every 30 days even the leave is for year-they keep jumping back and forth on AL to SL, etc." To which, another's hand has replied, "notified Bill Miller 2/13/84 will send in." At best, its message is ambiguous and one obvious interpretation is that monthly doctor's statements would be required by Petitioner from Respondent although the payroll employees already had the medical statement dated October 17, 1983 specifying one year, and that some confusion existed as to how to debit the Respondent's four months accumulated annual and sick leave during his absence. Under the foregoing findings of fact, Respondent abandoned his position upon his unexcused absence for three consecutive days after April 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law set forth herein, it is RECOMMENDED that, Respondent having been absent without approval for 3 consecutive workdays he be deemed to have abandoned the position of Behavior Program Specialist and to have resigned from the Career Service effective Jun 6, 1984. DONE AND ORDERED this 1st day of February, 1985, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1985. COPIES FURNISHED: Sharon Langer, Esquire 255 Alhambra Circle Suite 312 Coral Gables, Florida 33134 John Abramson, Esquire 799 Brickell Avenue Suite 800 Brickell Center Miami, Florida 33131 Gilda Lambert Secretary, Dept. of Administration 435 Carlton Building Tallahassee, Florida 32301 David H. Pingree Secretary, Dept. of Health & Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact At the time Respondent was advised that DHRS was processing his resignation from his position as Social and Rehabilitative Services Counselor II, effective August 31, 1983 (Exhibit 1), Fox had been employed by DHRS for some 12 years. This was termed a "voluntary" resignation by reason of abandonment of position. Fox had been on leave without pay from August 12, 1983, through August 19, 1983 (Exhibit 4). On Monday, August 22, a woman called Fox's supervisor and told him that Fox was in Miami, his sister had been involved in an automobile accident, and he would not be in to work. On August 24 Fox called his supervisor, Gilbertson, to advise that he was still with his sister but would be back to work by noon on Friday, August 26. During this period, Monday through Friday, Fox was placed on family sick leave. At noon on Friday Fox had exhausted all his sick leave. Fox did not report to work until September 2, 1983, at which time he was given a copy of Exhibit 1, the original of which had been sent to his residence by certified mail. Fox gave no explanation for his absence but took the copy of the letter given him and left abruptly. He was not asked to explain his absence, nor did he offer any such explanation. Fox had earlier had differences with his supervisor, Gilbertson, over what Gilbertson considered excessive use of sick leave by Fox. Fox presented no evidence regarding his period of unauthorized absence from August 26 until he returned September 2. The one witness he called had frequently used sick leave without incurring the displeasure of Gilbertson. However, this witness in the recent past has had his gallbladder removed, hemorrhoid problems, and hepatitis; and had given no reason for anyone to suspect he was abusing the use of sick leave.
Findings Of Fact On July 8, 1986, Respondent, Department of Health and Rehabilitative Services, sent Petitioner, Shirley Johnson, a letter to confirm her separation from employment as a Human Services Worker II in Pierce Cottage, Unit II, Facility IV, at the Gulf Coast Center in Ft. Myers. At the time, Johnson was a permanent employee of HRS. Her job at Pierce Cottage was to help care for 29 severely profoundly mentally retarded persons. On or about May 6, 1986, HRS' Gulf Coast Center instituted new policies for applying for authorization for leave from work. /1 No longer would Petitioner and fellow employees be required to notify their immediate supervisor, Twila Bevins, of their absence or tardiness. Instead, the employees are responsible only to notify the group shift supervisor on duty at Pierce Cottage. The employee only advises the group shift supervisor of the employee's intent to apply for authorization for leave and the amount and time the leave would be taken. The group shift supervisor does not approve leave. Authorization for leave must be obtained directly from the immediate supervisor, Twila Bevins, by explaining the reasons for the leave request which would entitle the employee to authorization for leave. Application for authorization for leave can be made either before or after the group shift supervisor is notified. However, no leave can be authorized for an employee who did not personally give notification of anticipated absence unless the employee is incapacitated. Petitioner is a mother of six. She also cares for her father, who has heart disease, and for her mother, who is overweight and has limited mobility. After a separation she has been reconciled with her husband, who, after being out of work, is now employed and contributes to the support of the family. On July 2, 1986, Petitioner and her immediate supervisor agreed that Petitioner would have July 3 and 4 off, but would work from 6:30 A.M. to 2:30 P.M. on July 5. Petitioner also was scheduled to work on July 6, 7 and 8, 1986. During the early morning hours of Saturday, July 5, between approximately 1:00 A.M. and 4:30 A.M., Petitioner's father had a heart attack and Petitioner and her husband went with him to the hospital and stayed there while he was being cared for. When they returned home at approximately 4:30 A.M., they were told by Petitioner's mother that Petitioner's brother was in jail in Ocala and that she was very concerned about her son. At her mother's request, Petitioner and her husband agreed to drive to Ocala to bail her brother out of jail. When they arrived in Ocala, Petitioner's husband, who was driving when they arrived in Ocala, was arrested for driving with a license under suspension and was himself put in jail. Petitioner herself then had to drive back to Ft. Myers to get money to bail her husband out of jail, drive back to Ocala to bail him out, and drive her husband back to Ft. Myers, a drive of a total of approximately 600 miles. Petitioner did not work and did not call in to work on Saturday, July 5. She was absent without authorized leave. On Sunday, July 6, 1986, Petitioner called into work at 6:30 A.M. to explain to the shift supervisor why she had been absent the previous day, and to notify him that she would not be in until approximately 10:00 A.M. However, tired from her ordeal the previous day and developing a severe headache, Petitioner did not work on Sunday, July 6. She called in later in the morning and spoke to one of the women working in Pierce Cottage but did not speak to the group shift supervisor. She was again absent without authorized leave. On the following morning, Monday, July 7, 1986, Petitioner called in at 6:25 A.M. to tell the group shift supervisor she would be late getting in to work. However, her headache got worse, and the pain traveled down to her neck and down one side of her body. The pain was so severe that she was crying uncontrollably. Although she still told her husband that she wanted to go to work to avoid any disciplinary problems, he talked her into letting him telephone Pierce Cottage to say that she would not be able to work on July 7. At approximately 6:45 A.M., her husband telephoned the group shift supervisor and told him that Petitioner would not be at work at all that day because of her physical condition. On Tuesday, July 8, 1986, Petitioner still was in approximately the same physical condition. At approximately 7:00 A.M., her husband telephoned the group shift supervisor at Pierce Cottage, reported her physical condition, and reported that Petitioner would not be in to work on July 8. Petitioner's husband also reported that Petitioner would probably have to see a doctor that day. Petitioner did indeed go to the Lee County Health Department on July 8, 1986, to be seen for her physical condition. Petitioner went to the Lee County Health Department because she and her husband could not afford to pay a private doctor. When Petitioner arrived at the Health Department at approximately 2:00 P.M., there was no doctor available to see her. She left at approximately 3:00 P.M. with a note confirming the she had been at the Health Department between 2:00 and 3:00 P.M., and that she needed a follow-up appointment. Although Petitioner still was suffering from a severe headache on Wednesday, July 9, 1986, she went to work, turning in her note from the Health Department. However, upon arriving, she was advised of HRS' July 8 letter confirming her separation from her employment. After reciting the grounds upon which HRS had taken the position that Petitioner should be deemed to have abandoned her position, the letter stated: "In the event it was not your intention to resign from employment, you are instructed to immediately contact me and provide a reasonable and acceptable explanation for your unauthorized absence from your employment." Petitioner was absent without authorized leave on July 5 and 6, 1986. Petitioner was not incapacitated from telephoning her group shift supervisor on July 7 and July 8, 1986. However, under the circumstances, it was reasonable for her to have her husband telephone for her. She did not intend to abandon her position. As of July 2, 1986, Petitioner had 27 hours of annual leave and 8 hours of compensatory time in her accumulative leave records and available for use July 5 - 8, 1986. She also would earn an additional 5 hours of annual leave and 4 hours of sick leave by July 10, 1986. This would have been enough to cover her absences and permit her to be paid during her absences if authorized and approved.
Recommendation Based upon the foregoing Findings of Fact' and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order granting the petition in this case and ruling that the circumstances of this case do not constitute an abandonment of Petitioner's position. RECOMMENDED this 3rd day of November, 1986, 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 3rd day of November, 1986.
The Issue The issues to be resolved in this proceeding, under the relevant provisions of Chapter 760 Florida Statutes, concern whether the Petitioner was discriminatorily discharged because of her race and purported disability.
Findings Of Fact The Respondent, Escambia County Area Transit, Inc., operates a passenger bus service in the area of Escambia County, Florida. The Petitioner was employed as a bus operator since August of 1999. On September 7, 2006, the Petitioner took FMLA leave for a condition involving migraine headaches. That leave extended through October 9, 2006. The Petitioner returned to work from that FMLA leave on January 9, 2007, however. A notice was sent to the Petitioner from Dawn Groders, an administrator with the Respondent, on April 19, 2007, informing the Petitioner that she had exhausted her FMLA leave for the twelve month "rolling calendar year" and that she would not begin accumulating additional FMLA leave until October 9, 2007. The Respondent's policy regarding FMLA leave is as follows: "If a family leave of absence exceeds 12 weeks on a rolling twelve month period, the employment status may be in jeopardy, which could result in termination of employment." There is a labor contract between the Respondent and the Amalgamated Transit Union, Local 1395, the Petitioner's union. That contract contains no provision regarding warning or noticing an employee about obtaining exhaustion of FMLA leave. On October 19, 2007, the Petitioner commenced additional FMLA leave for an injury to her finger. The collective bargaining agreement contains a provision regarding a discretionary leave of thirty days which may be discretionarily granted by the employer. Because the Petitioner had previously exhausted her FMLA leave, based on the rolling twelve month calendar, and had yet to re-acquire any leave, the Petitioner was granted discretionary leave by the Respondent because of having exhausted her FMLA leave. The Petitioner contends that she should have been given alternative light-duty work by the Respondent. On December 3, 2007, however, the Petitioner received a letter from Richard Deibler, the Respondent's Director of Safety Training and Planning, which stated that there was no temporary alternative- duty work available at that time. (Respondent's Exhibit 4, in evidence). The witness for the Respondent established that there was no available part-time or light-duty work at the time the Petitioner was on FMLA leave or attempted to be on FMLA leave. The union contract does not require that part-time, light-duty work be available, with the exception of one individual who was so authorized and who was "grandfathered-in" in that status from a previous union contract. The Petitioner presented no persuasive evidence which would establish that light-duty, part-time work was available at the time in question, in late 2007. Thereafter, the Petitioner remained on re-activated FMLA leave due to her previous injury during the month of December 2007. On December 11, 2007, she received a notice from the Respondent to the effect that she must report for duty by December 27, 2007, because of exhaustion of her FMLA leave and was advised that her employment might be terminated if she were not at work by that date. On December 27, 2007, the Petitioner failed to return to work and her employment was terminated because of exhaustion of her FMLA leave, in accordance with the Respondent's policy. As of the date of her termination, the Petitioner had used a total of 64 days of FMLA leave during the course of the rolling calendar year, dating back to December 27, 2006. The Respondent was aware that the Petitioner had exhausted her FMLA leave based on a rolling calendar year in October 2007, and yet still extended her leave, not just for the referenced thirty days discretionary leave, but for nearly ninety additional days. The Petitioner has asserted no dispute with the number of days the Respondent contends (and the evidence supports) that she was not present at work due to using FMLA leave or other forms of leave, such as discretionary leave. The Petitioner offered no persuasive evidence to show that she was terminated from her employment due to her race or any other reason aside from exhaustion of her FMLA leave and the company's policy with regard thereto. The Respondent's representative and witness established, with her testimony, that the Petitioner was not terminated because of any perceived or actual disability. Although the Respondent knew of the medical reasons the Petitioner stated necessitated her absence, the Respondent was not aware that any physical impairment had resulted in an impairment of any major life activity of the Petitioner. The testimony of Ms. Chizek, is accepted as persuasive in establishing that the Petitioner was not terminated because of any perceived or actual disability or for reasons of her race, but rather was terminated solely because she had exhausted her FMLA leave and in fact the substantial amount of discretionary leave voluntarily granted to her by the Respondent. The Petitioner presented no persuasive evidence that employees or former employees, outside her protected class (African-American) had been treated dissimilarly and more favorably, for the same or similar violations of company policy, to wit, the exhaustion of FMLA leave and subsequent continued failure to return to work. In fact, the persuasive, preponderant evidence shows that the Respondent uniformly applied its policy regarding FMLA exhaustion and subsequent termination of employment. Patty Chizek conducted an audit of all employee files in the fall of 2007 concerning the question of FMLA exhaustion. That audit was not an attempt to single out the Petitioner in any way due to her race or any disability, if one existed. Her investigation revealed that, in fact, a number of employees had exhausted their FMLA leave. They were all terminated during the month of December 2007, similarly to the Petitioner. Thus, Mary Nelson, Nadine Harris, Eurethia Davies, and Linda Donaldson, all of whom are Caucasian women, were terminated during December 2007 because of exhaustion of their FMLA leave. Derrick Roberts, an African-American male, was terminated during that month, for the same reason. All of these employees were terminated for that reason after not being able to return to work for a reasonable period of time after exhaustion of FMLA leave. Moreover, the Petitioner testified that she was first absent from work due to a migraine headache-related medical problem and, on the later occasion, due to injury of her finger, apparently caused by wrestling with the steering wheel of her bus, after it ran on the curb of a street she was traversing. Although it might be recognized, and indeed is undisputed, that these injuries or medical conditions were experienced by the Petitioner, the Petitioner did not establish that they truly impaired her in a major life activity. Even if they were significant, physical reasons for being absent from work for some of the time during which the Petitioner was absent, she did not establish, with persuasive evidence, that they impaired a major life activity and constituted any permanent, or relatively permanent, impairment of her ability to perform the duties of her job. Even if the Petitioner had established that there was a permanent impairment which might constitute a disability, she did not establish that the Respondent had refused a reasonable request for an accommodation therefor. Although the Petitioner requested light-duty employment, the Respondent established with persuasive evidence that, at the time it was requested by the Petitioner, there was no such employment available. Therefore, it was not an accommodation the Respondent could reasonably offer the Petitioner at that time, even if the Petitioner had a known, perceived or recognized disability at that time.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety. DONE AND ENTERED this 10th day of December, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 10th day of December, 2009. COPIES FURNISHED: John J. Marino, Esquire McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 James N. Foster McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 Tricia Dubose 1349 43rd Ensley Street Birmingham, Alabama 35208 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at tee hearing, the following findings of fact are made: On or about December 5, 1969, the Petitioner, Hugh G. Purkey became employed by the State of Florida, Department of Transportation. In 1984, Petitioner held the position of Engineer II, Area Engineer and was assigned to the North Dade Maintenance Yard (NDMY). In 1983, Petitioner executed a form which acknowledged he had received a complete copy of the DOT employee handbook. The acknowledgement specified that enployees are responsible to review the handbook in detail and to request any clarification needed from a supervisor. The handbook provided the following regarding job abandonnent: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. On or about October 23, 1984, Petitioner filed a request for a medical leave of absence. This request was based upon Petitioner's pulmonary disorder which prevented him from performing his duties with the NDMY. Petitioner was to receive pay based upon his accrued annual and/or sick leave through Novenber 6, 1984, thereafter, he was to be on leave without pay for a period of four months. This leave request was approved by the Petitioner's supervisor, Clive Taylor. Mr. Taylor was the only supervisor or employee at the NDMY who was authorized to grant a leave of absence for Petitioner. On January 28, 1985, an extension of Petitioner's leave of absence was granted by Mr. Taylor. This extension authorized two additional months of leave and specified that Petitioner would return to work no later than May 6, 1985. Prior to the leave of absence described above, Petitioner had performed his duties with the NDMY in an above satisfactory manner. Prior to May 6, 1985, Petitioner had complied with the rules and regulations regarding requests for leave. Petitioner did not return to work on May 6, 1985. Petitioner did not file a request for a leave extension. Mr. Taylor did not approve an extension of the leave beyond May 6, 1985. Petitioner was absent without authorized leave on May 6, 7, and 8, 1985. On May 10, 1985, Mr. Taylor executed a form entitled "Resignation and Exit Interview Form." This form provided, in part: "Mr. Purkey is not available for signature" and "Mr. Purkey is pursuing regular disability retirement." Petitioner did not execute the form but was advised of its content by telephone. Sometime prior to April 30, 1985, Petitioner had applied for disability retirement benefits. That request was filed with the Department of Administration, Division of Retirement and was denied based upon a determination that Petitioner was not totally and permanently disabled from rendering useful and efficient service. When that determination was made, Petitioner elected to file for regular retirement since he had accrued over ten years with the State. Thereafter, Petitioner received retirement benefits which were granted and paid retroactively from February 1, 1985. On July 9, 1986, Petitioner received a physician's statement which provided: It is my professional opinion that this patient may return to work requiring no strenuous physical activity providing that the patient continue on his medication and return for regular checkups in any office. Upon receipt of the physician's statement, Petitioner contacted the NDMY to request that he be allowed to return to work. Petitioner was advised that he had been terminated from employment in May, 1985, based upon his failure to return to work following his leave of absence. On July 29, 1986, Petitioner wrote to John C. Gocdnight, Assistant Secretary of Transportation, and requested Mr. Goodnight's assistance to allow Petitioner to return to DOT. That letter admitted that Petitioner knew his position had been filled but claimed he had been on leave. Petitioner maintained that he was "much too young to retire." The letter failed to mention that Petitioner had already been receiving retirement benefits. Petitioner listed his address subsequent to November, 1984, as Dunnellon, Florida. There is no record in Petitioner's personnel file which confirms DOT sent, and Petitioner received, a notice of his termination from employment in May, 1985. Petitioner did not request a hearing to review that termination until January, 1989.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Administration enter a final order finding that the Petitioner, Hugh G. Purkey, abandoned his position and resigned from the Career Service. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. The first portion of paragraph 2 is accepted; the designation of his last actual day of employment is in error and is rejected as contrary to the weight of the evidence. The date indicated, January 20, 1984, was not his last day of actual employment. According to DOT exhibit 8 (the referenced citation) that date was the last date worked. Petitioner's last date of employment would have been calculated from May 5, 1985 (the last date of his authorized leave). With regard to paragraphs 3 and 4, it is accepted that Petitioner used his accrued sick and annual leave until they were exhausted. After the paid leave was used, Petitioner applied for and received, by filing the appropriate form, an authorized leave without pay. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as comment, argument, or recitation of testimony which does not constitute a finding of specific fact. Paragraph 11 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as contrary to the weight of the credible evidence. Paragraph 14 is rejected as vague and ambiguous. It is accepted that Petitioner filed his original leave request and that Ms. Sellers assisted him. Paragraph 15 is rejected as incomplete and contrary to the weight of the evidence. Paragraph 16 is accepted to the extent that it provides that clerks would assist persons who requested such assistance. The first three sentences of paragraph 17 are accepted; the balance of the paragraph is rejected as argument or contrary to the weight of the evidence. The first sentence of paragraph 18 is accepted. The remainder of the paragraph is rejected as irrelevant or unknown. DOT did not establish that the form was sent and received by Petitioner. Paragraph 19 is accepted. Paragraph 20 is rejected as a provision of law. The parties have not disputed that the notice is required. Paragraph 21 is accepted to the extent that DOT cannot prove that such notice was provided to Petitioner. Paragraph 22 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant since Petitioner did not request that his medical leave be continued as required by the rule. Paragraph 24 is rejected as irrelevant. Further, the authorization to return was not without limitation. Paragraph 25 is rejected as contrary to the weight of the credible evidence. Paragraph 26 is rejected as irrelevant. Paragraph 27 is rejected as irrelevant. With regard to the letter to Goodnight, Petitioner admitted in that letter that he knew his position had been filled. Paragraph 28 is rejected as irrelevant. Paragraph 29 is accepted but is irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as irrelevant or not covered by the record. With regard to paragraph 32, it is accepted that Petitioner's request for disability retirement was denied and that he ultimately elected to seek early retirement; otherwise, it is rejected as hearsay uncorroborated by direct evidence. Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant or contrary to the credible evidence. Paragraph 35 is rejected as irrelevant. Paragraph 36 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 37 is rejected as irrelevant. Paragraph 38 is rejected as comment, argument, or recitation of testimony. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the credible evidence. Petitioner's section described as "Analysis" has not been considered findings of fact. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY DOT: 1. Paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 24, and 25 are accepted. Paragraph 2 is rejected as Irrelevant. Paragraph 4 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted but is unnecessary. Paragraph 23 is rejected as unsupported by the record. DOT's section described as "Analysis" has not been considered findings of fact COPIES FURNISHED: Paul H. Field WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE Grove Plaza Building, 5th Floor 2900 Middle Street Miami, Florida 33133 Charles Gardner Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Acting Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether the Respondent terminated Petitioner's employment on the basis of a perceived disability, in violation of Section 760.10, Florida Statutes (2004),2 the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Seiden's Relevant Employment. Petitioner Jane Seiden is an individual who was employed by the Florida Department of Corrections at Broward Correctional Institute (hereinafter referred to as "BCI") from December 1988 until the end of March 1999 as a licensed practical nurse. From April 1, 1999, until October 7, 2001, Ms. Seiden continued to work at BCI, but was employed by a private business, Prison Health Services. On October 8, 2001, Respondent Wexford Health Sources, Inc. (hereinafter referred to as "Wexford") took over responsibility for providing medical services at BCI. Ms. Seiden became an employee of Wexford as of that date, after having received a letter dated June 20, 2001, signed by Wendy Mildner, as Wexford's Director of Human Resources/Risk Management, offering her employment with Wexford effective October 8th. Ms. Seiden accepted the offer of employment on June 25, 2001. Wexford is a provider of health care services to correctional facilities, including BCI. Throughout Ms. Seiden's employment at BCI, she received excellent work performance reviews. Wexford's Leave Policies. Wexford's policies concerning employee "Family and Medical Leave" at the time of Ms. Seiden's initial employment with Wexford were contained in the Wexford Health Sources, Inc. Employee Handbook (Respondent's Exhibit 9) (hereinafter referred to as the "Employee Handbook"). The Family and Medical Leave policy was, in relevant part, as follows: Employees who are eligible for Family and Medical Leave may take up to 12 weeks of unpaid, job protected leave. Employees are eligible if they have worked for at least one year, and for 1,256 hours over the previous 12 months. Reasons for taking unpaid leave are: . . . . ? for a serious health condition that makes the employee unable to perform the employee's job. . . . . The Wexford Employee Handbook, Revised 09/01/04 (Petitioner's Exhibit 9) (hereinafter referred to as the "Revised Employee Handbook"), established policies governing "Time Off" in Section 5. Pursuant to Policy 5.3, all employees are allowed to apply for a leave of absence for medical reasons. The period of the absence is limited, however, to 12 weeks, consistent with the Family and Medical Leave Act (hereinafter referred to as the "FMLA"), unless the employee is eligible for "income replacement benefits," for example for a short-term disability pursuant to Section 4.5, which provides the following: Wexford provides some income protection for employees who are unable to work for an extended period of time due to illness or injury through its Short-Term Disability Leave (STD) insurance program. You are eligible for STD benefits if: You Have completed one year of continuous service You work a minimum of 30 hours per week and are covered by health insurance. Eligible employees are entitled to short- term leave for up to 26 weeks in a rolling 12-month period. The rolling 12-month period is calculated by counting backwards from the date of the leave request. For example, if you request a leave in November, the rolling 12-month period is from November of the previous year to November of the current year. You will be required to provide a medical doctor's certificate to qualify for short- term disability leave. STD runs concurrent with the Family and Medical Leave Act (FMLA). Your weekly benefit is 50% of your weekly salary to a maximum of $300, whichever is less. . . . . Thus, Wexford policies, at the times relevant, allowed eligible employees to take up to 12 weeks of leave pursuant to the FMLA and 26 weeks of what Wexford termed "short-term disability" leave, the latter to run concurrently with the 12 weeks of family medical leave. Policy 5.3 describes Wexford's policy concerning "When Return to Work is Not Possible": If following 26 weeks of medical leave you remain unable to return to work your employment will be terminated. If you are able to work at a later point in time, you are welcome to reapply for employment. Your past history and work background will be taken into consideration for reemployment purposes. Consistent with this policy, Wexford does not grant extensions of the 26 week, short-term disability maximum absence. Also consistent with the policy, Wexford treats an employee as terminated at the end of the 26 week short-term disability absence if the employee does not return to work. Policies 5.3 and 5.4 provide the procedural requirements for applying for a medical leave of absence (forms to file, providing health care professional certifications of illness, etc.) and other procedures and the conditions for which FMLA leave will be granted. Of relevance to this matter, one of the conditions for which FMLA leave will be granted is: "a serious health condition that makes you unable to perform the essential functions of your job." Policy 5.4. Policy 5.7 of the Revised Employee Handbook is the established procedure for "Personal Leave of Absence - Unpaid." That Policy provides, in pertinent part" With the approval of management and the Vice President of Human Resources, you may be granted an unpaid personal leave for unusual, unavoidable situations requiring an absence from work. The unpaid personal leave is for a pre-determined period of time. Unpaid personal leaves of absence are awarded at the discretion of management and cannot be presumed or guaranteed. You must use all available PTO [personal time off] before requesting personal leave. . . . As reasonably interpreted by Wexford, the Unpaid Personal Leave of Absence policy is not used or intended for use as a method of taking off time in addition to the time off allowed by Wexford's policies governing FMLA leave and short- term disability leave. Ms. Seiden's Absence from Wexford. Ms. Seiden, who acknowledged receipt of, and responsibility for reading, the Employee Handbook at the time she was employed by Wexford, was diagnosed with kidney carcinoma in 2004. As a result of her illness she did not rest comfortably and, therefore, woke up during the night, she could not sit for long periods of time, and, although not fully developed in the record, she required hospitalization. As a result of her illness, Ms. Seiden was, due to a "serious health condition," "unable to perform the essential functions of [her] job." As a consequence, the last day that Ms. Seiden worked at BCI was April 26, 2004. Ms. Seiden was provided a Memorandum dated May 6, 2004, from Tara M. DeVenzio, Risk Management/Leave Compliance Assistant (hereinafter referred to as the "May 6th Memorandum"). The May 6th Memorandum, which Ms. Seiden read, states that Wexford had been notified that she was requesting a leave of absence and is "in need of Family Medical Leave (FML) and Short Term Disability (STD) forms." Those forms were included with the May 6th Memorandum. The May 6th Memorandum goes on to explain the procedures Ms. Seiden was required to follow in making her request for leave and the extent of leave available to her. The May 6th Memorandum also informed Ms. Seiden that, consistent with Wexford's written leave policies, the "[m]aximum amount of time allotted for Short Term Disability is 26-weeks on a rolling twelve (12) month period . . ." and that "[i]f you do not return when your leave has ended, you will be considered to have voluntarily terminated employment." Consistent with the May 6th Memorandum and the policies of the Employee Handbook, Ms. Seiden completed the forms required by Wexford to apply for FMLA and short-term disability leave to begin in April 2004, and end in October 2004. Ms. Seiden executed a Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Initial Leave Request") on May 10, 2004. (Petitioner's Exhibit 14). On the Initial Leave Request Ms. Seiden checked a box which indicated her reason for requesting leave was "Serious health condition that makes me, the employee, unable to perform the functions of my position." A space on the Initial Leave Request for "Date Leave of Absence to End" was left blank. Also provided to Wexford with the Initial Leave Request, was a Certification of Health Care Provider (hereinafter referred to as the "Certification"), as required by Wexford's leave policies. The Certification was from Nine J. Pearlmutter, M.D. Dr. Pearlmutter reported on the Certification that Ms. Seiden's "serious health condition" was a "renal mass" and that hospitalization was necessary. Dr. Pearlmutter also stated "yes at this time" in response to the following question on the Certification: If medical leave is required for the employee's absence from work because of the employee's own condition (including absences due to pregnancy or a chronic condition), is the employee unable to perform work of any kind? Ms. Seiden's Initial Leave Request was approved and she was provided a Memorandum dated May 25, 2004, from Ms. DeVenzio, memoralizing the approval. Ms. DeVenzio informed Ms. Seiden that her leave was approved "to commence on April 26, 2004." Ms. Seiden's 26-week period of leave began on April 26, 2004, ended October 25, 2004. Throughout this period, Ms. Seiden remained absent from BCI. On October 22, 2004, a Friday, Ms. Seiden telephoned Ellie Zeigler a Human Resources Generalist for Wexford, and spoke to her about the pending end of her approved leave. Ms. Seiden informed Ms. Zeigler that she wanted to request an extension of her leave, which Ms. Zeigler had not authority to grant or deny. Ms. Zeigler, who had not authority to approve or disapprove the request for an extension, told Ms. Seiden that she would send her forms, which she would have to file in order to request additional leave. Ms. Zeigler also explained to Ms. Seiden that the maximum leave available to her had been exhausted, and that, because her physician had not released her for return to work, her employment with Wexford would be considered terminated if she did not return to work the following Monday. Ms. Zeigler also told Ms. Seiden that a letter to that effect would be sent to her. Ms. Zeigler, as promised, sent Ms. Seiden a Wexford Family / Medical Leave of Absence Request. On Wednesday, October 27, 2004, two days after Ms. Zeigler's approved absence ended, Ms. Seiden executed the Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Second Leave Request") which Ms. Zeigler provided to her. Again, she checked as the "Reason for Leave" the box indicating "Serious health condition that makes me, the employee, unable to perform the functions of my position" and the "Date Leave of Absence to End" space was left blank. A second Certification of Health Care Provider form (hereinafter referred to as the "Second Certification"), executed by Dr. Pearlmutter was provided with the Second Leave Request. Dr. Pearlmutter listed, among other things, carcinoma of the kidney as Ms. Seiden's illness. While Dr. Pearlmutter indicates a "2 month" duration for one of the listed conditions, she did not indicate when Ms. Seiden would be able to return to work at the end of two months. Again, Dr. Pearlmutter answered "yes" to the question quoted in Finding of fact 18. The Second Leave Request, which was sent by certified mail on Thursday, October 28, 2004, three days after the end of Ms. Seiden's approved leave, was received by Wexford on Monday, November 1, 2004, seven days after the end of her approved leave. The Termination of Ms. Seiden's Employment. On October 25, 2004, the last day of Ms. Seiden's approved absence, Arthur Victor, Wexford's Human Resources Manager, and Ms. Zeigler exchanged e-mails concerning Ms. Seiden. In response to an inquiry from Mr. Victor, Ms. Zeigler informed Mr. Victor that October 25, 2004, was the last day of Ms. Seiden's approved leave. In response to Ms. Zeigler's information, Mr. Victor wrote "[t]hen there is no extension. Six months is up 10/30/04. You need to talk to Ron Miller re. termination." This decision was consistent with Wexford’s written policies and was based upon Ms. Seiden's failure to return to work on October 25, 2004. Given Mr. Victor's statement that "there is no extension," it is found that Mr. Victor had been informed that Ms. Seiden intended to request an extension of her approved absence. It is also found that Wexford was aware of the reason for Ms. Seiden's absence: kidney cancer. Finally, it is found that, by terminating Ms. Seiden's employment, Wexford denied the requested extension. After receiving Mr. Victor's e-mail indicating that Ms. Seiden would be terminated, Ms. Zeigler wrote to Ron Miler and Judy Choate, Ms. Seiden's supervisor, and informed them of the following: I received a call from Jane last friday [sic] requesting an extension for her fmla. Jane's 26 weeks for her std/fmla has expired as of today (10/25/04). I just spoke with Jane and inform [sic] her that her Dr. has not released her for full duty and that she was exhausted all of her authorized fmla/std leave and that Wexford considers her to have resigned from her position. I told Jane that Judy will be sending her a letter confirming her of the above. To Ms. Choate, Ms. Zeigler continued: The letter should be sent from you. Attached you will find a copy of the letter that Art has drafted for your [sic] to send to Jane regarding her std/fmla. . . . . Also, please complete the "Termination Processing From" and forward it to the Pittsburgh office so I can term her out of the system. The draft termination letter provided to Ms. Choate and dated October 26, 2004, was signed by Ms. Choate and sent to Ms. Seiden. The letter (hereinafter referred to as the "Termination Letter") states, in part: As you are aware, you have exhausted all authorized Family and Medical/Short Term Disability leave. You were to return to work on October 25, 2004. Since you have not returned, Wexford Health Sources, Inc. considers you to have resigned your position as a Licensed practical [sic] Nurse, effective October 25, 2004. If you are in disagreement with this letter, please contact me immediately but no later than 4:00pm, on 10/28/02004 at If it is determined that there were extenuating circumstances for the absence and failure to notify, you may be considered for reinstatement. . . . . Ms. Seiden received the Termination Letter on November 3, 2004. She did not contact Ms. Choate about the matter. Although she had been informed on October 22, 2004, that she would be terminated by Wexford during her telephone conversation with Ms. Zeigler, November 3, 2004, constitutes the first official notice of Wexford's adverse action which Ms. Seiden received. The effective date of Ms. Seiden's termination was October 25, 2004. The Reason for Ms. Seiden's Termination. Ms. Seiden was terminated because, consistent with written Wexford policies which Ms. Seiden had been informed of on more than one occasion, Ms. Seiden had exhausted the maximum family medical leave and short-term disability leave she was authorized to take. Having used the maximum authorized medical leave, Ms. Seiden was still unable to perform any of the functions and duties required of her position. Due to her illness, she was simply unable to perform any work at all during the period relevant to this case, a fact Wexford was aware of. While she testified at hearing that she had been told by her physician that she would be able to return to work in January 2005, that testimony constitutes hearsay upon which a finding of fact will not be made. More significantly, Wexford was never informed by Ms. Seiden or her physician that she would be able to work. Wexford's policies gave Ms. Seiden leave in excess of the 12 weeks required by the FMLA. Wexford was not required to do more. Ms. Seiden's Claim of Discrimination. Ms. Seiden filed her Employment Complaint of Discrimination with the FCHR on November 30, 2005, or 392 days after being informed that she had been terminated and 401 days after her actual October 25, 2004, termination date. After a Determination: No Cause was issued by the FCHR, Ms. Seiden filed a Petition for Relief in which she alleged that Wexford had "violated the Florida Civil Rights Act of 1992 by terminating [her] based upon a perceived disability." No allegation of failure to provide an accommodation for her disability was alleged in the Petition. Summary. The evidence proved that Ms. Seiden failed to file her complaint of discrimination with the FCHR within 365 days of the discriminatory act. She offered no explanation as to why she did not do so. Ms. Seiden failed to establish a prima facie case of unlawful employment discrimination. While she did prove that she suffered from kidney cancer and that, as a result of her illness she was unable to perform the duties of her position, which may constitute a disability, she ultimately failed to prove that she was a "qualified individual" with or without an accommodation. From April 2004 through October 22, 2004, when she orally informed Wexford that she desired an extension of leave, her termination from employment on October 25, 2004, and on November 1, 2004, when her formal request for an extension of leave was received by Wexford, Ms. Seiden, along with her physician, reported to Wexford that she was unable to carry out her employment duties. Ms. Seiden also failed to prove that she was terminated because of her illness, on the basis of a perceived disability. Finally, Wexford proved a non-pretextual, non- discriminatory reason for terminating Ms. Seiden's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Jane Seiden. DONE AND ENTERED this 18th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2007.
Findings Of Fact Burney was employed by HRS until 5:00 p.m. on September 28, 1988, when she was deemed to have abandoned her position. Her regular working hours were 8:00 a.m. to 5:00 p.m., Monday through Friday. Burney was not at work on September 26, 1988. She maintains that she had someone call in for her to inform HRS that she would not be in that day. Burney does acknowledge that her supervisor, Sherry Martin, told the caller that she could not approve leave for that day. Burney did not report for work on September 27, 1988. Burney called her office and spoke with another clerk, not with her supervisor. Her supervisor was unavailable and the clerk did not have the authority to approve leave. Burney again failed to report for work on September 28, 1988. She called in and spoke with Mrs. McClenton, another supervisor. Burney informed Mrs. McClenton that she had a drug problem which was why she had not been at work. Burney asked her where she could get some help for her problem. Burney was told that her supervisor could not help her and that she would have to get help on her own. On October 4, 1988, HRS sent Burney a certified letter advising her that her absence from work on September 26-28, 1988, was not authorized and that she was deemed to have abandoned her position and to have therefore resigned from Career Service, effective 5:00 p.m. September 28, 1988. On October 7, 1988, Burney returned to her office seeking her paycheck. She was told by the personnel office that leave was not approved for that period and that she was no longer employed there. Burney did not report for work on any day between September 26 and October 7, 1988. She had not requested leave on a leave request form and no leave was authorized by her supervisor for this period. Burney knew that she was not on approved leave and had been told that her supervisor would not approve leave for that period. Leave is only authorized when it is requested on an appropriate leave request form and is approved by a supervisor. Rule 22A-7.010(2), Florida Administrative Code, provides: An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service...
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order and therein find that Angela B. Burney has abandoned her position, deem that Angela B. Burney has effectively resigned from Career Service, and dismiss the petition for review. DONE and ENTERED this 20th day of February, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 20th day of February, 1988. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Angela B. Burney 1585 West 35th Street Jacksonville, Florida 32209 Scott D. Leemis Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue Whether Respondent resigned his position of employment with Petitioner and, if not, whether Respondent's position of employment with Petitioner should be terminated for cause, specifically, the Respondent's alleged absence without leave, his alleged abuse of sick leave, and his alleged theft of school property.
Findings Of Fact Respondent was employed by Petitioner as a painter pursuant to an annual contract from January 17, 1983, until January 29, 1993. Respondent was not a member of the instructional staff, a principal, or a supervisor. Respondent did not submit to the Petitioner a formal resignation of his employment, nor did he ever intend to do so. A School Board employee with an annual contract may be dismissed during the term of his contract for cause. Respondent had frequently taken leave during his term of employment with the Petitioner and he was aware of the School Board's policies pertaining to leave. Respondent is a member of a collective bargaining unit represented by the International Brotherhood of Firemen and Oilers, Local 1277, AFL-CIO (IBFO). The collective bargaining agreement between the IBFO and the School Board contains terms and conditions of employment pertinent to this proceeding. Article IV, Section F pertains to "Return from Leave" and provides as follows: Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal. This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent. Article IV, Section A of the collective bargaining agreement pertains to sick leave and provides, in pertinent part, as follows: 3. Sick Leave Charged -- Sick leave shall be charged in no less than half-day segments. Each school or Department shall record absences on an hourly basis. When the appropriate half-day increment is reached, based upon the assigned employee workday, the employee shall have 1/2 day of accumulated sick leave deducted. . . . * * * 10. False Claim -- False claim for sick leave shall be grounds for dismissal by the School Board. Petitioner's Administrative Directive D-3.47(3) is a rule of the School Board and provides, in pertinent part, as follows: (3) District employees shall not convert School Board property, including any equipment and supplies, for personal business or activity. CONVERSION OF SCHOOL BOARD PROPERTY In November 1992, Warren Haan, the paint supervisor for the Petitioner's Department of Maintenance and Operations, was told by Jacques Brisson, Respondent's foreman, that it appeared to him that Respondent was taking school property for his own use. Mr. Haan investigated the allegations and went to the area in the maintenance department where the employees parked their vehicles. Mr. Haan looked into Respondent's personal vehicle and discovered that Respondent had placed inside of his vehicle property of the School Board. The evidence established that Respondent intended to convert this property to his own use. The property, which was taken from the Respondent before he could remove it from school grounds, consisted of an empty paint bucket, painter's rags, a small quantity of caulk, and a caulking gun. Mr. Haan referred this matter to the school security department on January 4, 1993. Respondent had not been disciplined at the time of his alleged resignation because the matter was still under investigation at that time. Respondent testified that other painters regularly took items such as empty paint buckets and paint rags. This self-serving testimony does not establish that Petitioner routinely permitted painters to violate the clear school policies pertaining to unauthorized use of school property. To the contrary, the testimony of Mr. Brisson established that theft had been a problem that he had tried to stop. ABUSE OF SICK LEAVE The Respondent occasionally was employed as a painter by individuals and entities other than the Petitioner. Such employment was permissible, but an employee was not permitted to perform services for private individuals while out on sick leave. The Respondent reported to work on December 3, 1992, and left his employment in the late morning using sick leave for the remainder of the day. That same day, Mr. Haan received information that led him to believe that Respondent had taken sick leave, but that he was working as a painter at a house under construction in an area referred to as Boca Grove in Boca Raton, Florida. Mr. Haan went with Dave Traill, another school board employee, to this private residence at approximately 2:30 p.m. on December 3, 1992, where he observed Respondent's automobile. He went to the residence under construction and asked to see the Respondent. The Respondent thereafter came out of the house and talked with Mr. Haan and Mr. Traill. Mr. Haan and Mr. Traill did not see what Respondent had been doing inside the residence. Respondent testified that he had seen his doctor for a brief appointment earlier that day and had gone from his doctor's office to the residence at Boca Grove. Respondent admitted at the formal hearing that he had agreed to paint the house for the owner, but asserted that he had gone to the house to tell the owner that he would not be working that day. Respondent testified that he had taken vacation leave when he actually worked on the private residence. Respondent admitted that he had spent approximately two hours on December 3, 1992, while on sick leave going over with the owner items of work that he was to perform. This meeting was a necessary part of the painting job he was to do for the owner. From the evidence presented, it is found that on December 3, 1992, the Respondent performed services unrelated to his duties as a school board employee for his personal gain at this house in Boca Grove while absent from his employment with the Petitioner pursuant to sick leave. Respondent abused Petitioner's sick leave policy. ABSENCES WITHOUT LEAVE In January 1993, Petitioner took time off from his work to attend to his wife, who continued to experience physical problems resulting from a heel fracture on August 28, 1992. Respondent contacted his foreman, Jacques Brisson, at approximately 7:30 a.m. on Monday, January 25, 1993, to request that he be allowed to take that week off as vacation time. Mr. Brisson approved that leave, but he informed Respondent that he would have to contact Warren Haan, the painting supervisor, if he wanted to take any additional time off. Respondent was absent from his employment without approved leave on Monday, February 1, 1993; Tuesday, February 2, 1993; Wednesday, February 3, 1993; and Thursday, February 4, 1993. Friday, February 5, 1993, was not a scheduled work day since the paint department was on a four day work week. Respondent testified that he contacted Mr. Haan during the last week of January 1993 and told him he may need to be off work for a week or longer. Respondent also testified that Mr. Haan authorized his leave during the last week of January 1993. Mr. Haan testified at the formal hearing, but he was not questioned about this conversation or whether he authorized leave for the Respondent during any part of February 1993. Mr. Haan testifed that Respondent's employment was terminated because he was absent without authorization for the days in February and that Respondent would have contacted Mr. Brisson to obtain authorization for leave. Respondent later testified that he did not know why he had not contacted anyone prior to being absent on February 1, 2, 3, and 4, 1993. The apparent conflicts in Respondent's testimony are resolved by finding that while Respondent may have told Mr. Haan at some time during January 1993 that he needed to take some time off, he did not seek and he was not given authorization to be absent from his employment on February 1, 2, 3, and 4, 1993. On February 5, 1993, Warren Page, Coordinator of Petitioner's Department of Maintenance and Plant Operations, sent to Respondent by certified mailing a letter which provided, in pertinent part, as follows: This is to confirm that you have not reported to work since January 29, 1993. You have not contacted this office as required to report your intended absences. You have not requested or received approval for a short term leave of absence. Therefore, you are currently absent without approved leave. In the absence of any correspondence from you, I can only assume that you have decided not to continue working as a Painter for the Palm Beach County School Board. Please be advised that your name will be submitted to the Palm Beach County School Board at its next regularly scheduled meeting for acceptance of your resignation from employment. Should you have any questions, feel free to contact this office. Respondent received the certified mailing on Saturday, February 6, 1993. On Monday, February 8, 1993, Respondent contacted Lawrence G. Zabik, the Petitioner's Assistant Superintendent for Support Services, and asked him what he should do about the certified mailing that he had received. Mr. Zabik told Respondent that he should meet with Mr. Page to see if he could work things out. Respondent did not contact Mr. Page, and he did not report to work. During a regularly scheduled meeting in February, 1993, the School Board voted to accept his resignation with an effective date of January 29, 1993. January 29, 1993, was the effective date of the acceptance of Respondent's "resignation" and the date his employment with the School Board was terminated because it was the last day Respondent was out on authorized leave. This action was taken pursuant to Petitioner's Administrative Directive D- 3.27(2)(c), which provides as follows: (c) When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employees stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. By notice dated March 2, 1993, Respondent was notified that the School Board had accepted his resignation as a painter with an effective date of January 29, 1993. The notice dated March 2, 1993, contained an old address for the Respondent. Consequently, he did not receive a copy of the notice until May 24, 1993, when he was officially informed that his employment had been terminated effective January 29, 1993, the last day on which Respondent had been on approved leave. Respondent thereafter requested a formal hearing to contest his termination, and this proceeding followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order which terminates the employment of the Respondent. DONE AND ENTERED this 18th day of May, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4233 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 11 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence established that the incident involving conversion of school board property occurred in November 1992, but that it was reported to Mr. Sapyta on January 4, 1993. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings of fact in paragraphs 1, 4, 5, 6, 7, 13, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2, 3, and 10 are rejected as being unnecessary as findings of fact, but the proposed findings are adopted either as preliminary matters or as conclusions of law. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made. The proposed findings of fact in paragraph 9 are adopted by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached since there is no contention that Respondent had exhausted his sick leave. The proposed findings in the second sentence of paragraph 11 are rejected. Specifically, Mr. Haan's credibility was not eroded as asserted by Respondent. The other findings of fact in paragraph 11 are adopted by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 12 and 14 are rejected as being unnecessary to the conclusions reached since this is a de novo proceeding. The proposed findings of fact in paragraph 16 are subordinate to the findings made. The proposed findings of fact in paragraph 17 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraph 18 are subordinate to the findings made or to the conclusions reached. COPIES FURNISHED: Hazel Lucas, Esquire Palm Beach County School Board Office of the General Counsel 381 Forest Hill Boulevard, Suite C302 West Palm Beach, Florida 33406-5813 Glen J. Torcivia, Esquire One Clearlake Centre 250 Australian Avenue South Suite 1504 West Palm Beach, Florida 33401 Isidro M. Garcia, Esquire 3501 South Congress Avenue Lake Worth, Florida 33461 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
The Issue Whether the Petitioner was absent from work without authorization for three consecutive workdays so that she is deemed to have abandoned her position and to have resigned as a Career Service employee.
Findings Of Fact Petitioner Viola D. Cooper began her employment with Respondent Department of Health and Rehabilitative Services on October 19, 1987. She held the position of Support Service Aide at the Landmark Learning Center in Opa Locka, Florida. When she was hired, she was given a copy of the Department's Employee Handbook which contains attendance and leave policies. She signed a receipt for the handbook which acknowledged that she understood it was her responsibility to review the handbook in detail. On several occasions, Petitioner was counseled by her immediate supervisor regarding the proper procedures to follow when Petitioner would be late reporting to work and when Petitioner wanted to use some of the leave time available to her. Additionally, on August 8, 1988, Petitioner received a written reprimand from her supervisor for being absent from work without authorized leave. That written reprimand recited that Petitioner was scheduled to work on July 5, 1988, and that she failed to come to work and failed to call. She was, accordingly, assessed eight hours of leave without pay for that particular day and was advised that a future violation of absence without authorized leave would result in disciplinary action ranging from a 10-day suspension to dismissal. She was further reminded in that written reprimand that she was required to request leave when she was going to take time off from work. On May 3, 1989, Petitioner advised her then supervisor Barbara Butler that she intended to take off some time to visit her sick mother, that she did not know exactly when she would be doing that, and that she did not know how long she would be gone. She told Butler she did not want to use any of her annual leave (vacation) time available to her; instead, she wished to take leave without pay so as to not use her annual leave time for that purpose. Her supervisor again advised her as to the proper procedures and further advised her that if she wished to take leave without pay such a request must be presented in writing in advance to Edward Dixon, the Food Service Director at Landmark. Petitioner understood the instructions given to her by Butler. She advised Butler that she would attempt to finish working the rest of that week but that if she found out that she needed to go even in the middle of the night, she would do so. Petitioner worked May 4 and May 5, 1989. During the time period of May 3 when Butler advised her to follow the proper procedures and informed her, once again, as to what the proper procedures were, through May 5, her last day of work, Petitioner submitted no request for leave to her supervisor and made no request of Dixon for authorized leave without pay. Petitioner was not scheduled to work on May 6 and 7, a Saturday and a Sunday. From Monday, May 8, 1989, through Thursday, May 11, 1989, Petitioner failed to report to work. Petitioner had not requested that she be permitted to take leave from her work assignment, and no authorization had been given to her by anyone to not report for work on those days. Butler advised Dixon that Petitioner had stated that she might be taking time off to visit her mother, and Dixon's subsequent attempt to contact Petitioner to ascertain why she had failed to report to work for four consecutive days was unsuccessful. By certified letter dated May 11, 1989, Dixon and Ulysses Davis, Superintendent at Landmark Learning Center, advised Petitioner that she had not called in or reported to work on May 8 through May 11 and, therefore, she had abandoned her position and was deemed to have resigned from the Career Service. They further advised Petitioner that her resignation would be effective on the date she received the letter or on the date that they received the undelivered letter directed to her. Petitioner received that letter on May 19, 1989. Between May 8, 1989, and May 19, 1989, Petitioner had made no contact with anyone at Landmark Learning Center. By May 19, 1989, Petitioner had been absent without leave for 10 consecutive workdays. On May 19, Petitioner appeared at Landmark Learning Center to pick up her pay check. Although she went to the food service area while she was at Landmark, she did not speak to Butler, Dixon, or anyone else regarding her lengthy unauthorized absence or her failure to request leave in advance of failing to appear for work. Similarly, she failed to speak to anyone in Landmark's personnel office regarding her failure to request leave time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner was absent without authorized leave for three consecutive workdays and is therefore deemed to have abandoned her position and to have resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of December, 1989. LINDA M. RIGOT 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 19th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3538 Petitioner's proposed findings of fact contained in her paragraphs numbered 1-3 have been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 1-4, and 7 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the evidence in this cause. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting recitation of the testimony. COPIES FURNISHED: Elizabeth Judd-Edwards Assistant Regional Director 2171 Northwest 22nd Court Miami, Florida 33142 Julie Waldman and Caridad Planas, Esquire 401 Northwest 2nd Avenue 5-424 Miami, Florida 33128 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
