The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This controversy involves an allegation by petitioner, William E. Bergen (Bergen or petitioner), that respondent, BellSouth Telecommunications, Inc. (BellSouth), refused to reasonably accommodate his handicap. BellSouth is an employer that employs fifteen or more employees and thus is subject to the Florida Civil Rights Act of 1992. BellSouth denies the allegation, and a preliminary investigation by the Florida Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. Petitioner began his employment with BellSouth (then known as Southern Bell) in 1979. He was initially stationed in the Metro Dade service area (greater Miami area) but six months later was transferred to the North Dade service area. While employed in South Florida, Bergen briefly worked as an outside plant technician but soon changed to the position of service technician. In that position, he was required to install and repair residential and business telephone lines. In May 1990, Bergen moved to Gainesville, Florida, which lies within the North Florida Division of BellSouth. After taking a test, he began working in operator services on July 13, 1990. An operator generally assists customers in placing calls, arranges credit for misdialed numbers, assists handicapped customers in dialing numbers, answers customer inquiries and performs other related tasks. At the Gainesville office, an operator sits or stands at one of a number of unassigned work stations, all having a standard size desk with a computer terminal and keyboard. At least two work stations have stand-up desks for those operators who choose to work in a standing position. All operators generally work a seven and one-half hour shift with one-half hour for meals. In Bergen's case, he usually worked the 3:30 p. m. - 11:30 p. m. shift. Except for Bergen, who stands six feet four and one-half inches tall, all other operators working in the Gainesville office were less than six feet. Thus, Bergen could not fit his knees underneath the standard size desk and the computer screens were not at eye level. Also, because his hands were so large, Bergen used an erasor rather than his fingers to key the keyboard. Until October 1992, petitioner says that, except for absences due to injuries to his lower back and eye, his attendance had been "perfect" over the prior 13-year period, and BellSouth did not dispute this contention. BellSouth has a Benefits Administration Department, which makes determinations regarding an employee's disability status, as well as decisions regarding any medical restrictions that will be imposed upon an employee after returning to work. In doing so, that Department relies upon the treating physician's notes and "quite often" it requires the employee to have a functional capacity evaluation performed. In some cases, the employee is required to have an independent medical evaluation performed by another doctor. Finally, the Department relies upon advice from its own in-house medical consultant, Dr. Barry Kern, who is board certified in occupational medicine. As will be recounted in subsequent findings, in making a decision as to petitioner's status, the Benefits Administration Department relied upon the doctor's notes, a functional capacity evaluation, an independent medical evaluation, three work site evaluations by occupational therapists, and input from its in-house medical specialist. In the latter part of October 1992, petitioner woke up one morning with his shoulder and neck "bothering" him. He continued to work that week but the condition became progressively worse. He eventually went to the emergency room at a local hospital on Friday, October 23, 1992. Petitioner was given pain medication and told to put his right arm in a sling. The following Monday, October 26, 1992, petitioner visited his family physician (Dr. Guillen) who believed he might be suffering from a pulled muscle. After returning to work, petitioner had his computer and keyboard moved to the left side of his desk so that he could rest his right arm on the desk and "key" the keyboard using his left arm. Petitioner continued working with his left hand until Thanksgiving Day, November 26, but went home that day because he says he "couldn't stand the pain anymore." He called in sick the next day and began a week's vacation the following Monday. In early December, petitioner visited a chiropractic physician, who recommended that an MRI be performed and that petitioner consult a neurosurgeon. Accordingly, petitioner had an MRI performed and on December 3 visited a Gainesville neurosurgeon, Dr. Freeman. He was told by Dr. Freeman that he had probable cervical disc disease (multiple level cervical spondylosis), a condition that causes pain in the neck area, and a possible herniated disc in the C-5 and C-6 area. In layman's terms, cervical spondylosis means arthritis of the neck and wear and tear on the discs and small joints of the neck. It is a degenerative condition that comes with age and produces bony growth in the spine that can put pressure on nerves in the neck. Dr. Freeman suggested petitioner undergo physical therapy on a twice-weekly basis. Bergen did so beginning December 10. Because of his ailments, petitioner was placed on short-term disability leave with pay from December 7 until January 8, 1993. This type of leave is required when an employee is absent from work due to illness or injury more than seven consecutive days. By January 5, 1993, Bergen was no longer experiencing any neck pain and he was able to "use (his) arms." Accordingly, he asked Dr. Freeman for permission to return to work. Dr. Freeman prepared a disability certificate authorizing Bergen to return to work effective January 11 and assume his "regular" work duties with no restrictions. When he returned to work that day, petitioner asked his second level manager, Rebecca P. Leynes, if he could be "loaned" from the operator services section to "outside forces" but Leynes declined to do so. Bergen then assumed his regular operator job duties. Because of pain in his arm and neck, however, he again went on short-term disability leave on January 20 and remained on leave with pay until February 3. During his absence, petitioner was treated by Dr. Freeman, who suggested that an occupational therapist evaluate his work site to determine what changes could be made to alleviate some of his discomfort. The therapist visited the work site on January 25 and prepared a report the same date. The report recommended that BellSouth provide an anti-glare screen, provide a larger swivel desk chair at least twenty-two inches high, raise the desk to at least thirty-two inches to accommodate Bergen's height, place the keyboard at a forty-five degree angle, and "provide use of an adequate standing table daily." Petitioner returned to work on February 3 and was told to use the stand-up position as an accommodation to his ailment. After a heated conversation with Leynes because no work station had been modified, Leynes advised him that the Gainesville operator services center was slated for two adjustable work surfaces but they were delayed for budgetary reasons since the center already had two stand-up positions. Leynes then proceeded to modify a stand-up work station for Bergen by raising the CRT, keyboard and multileaf to a height that she says was "comfortable to (petitioner)." She did this in part by placing six or seven reams of paper under the computer screen to raise it to eye level. Even so, Bergen left work early that day because of pain. The next day, a nurse in the Benefits Administration Department telephoned Leynes and advised her that if Bergen had a disability, federal law required that his work station be modified. During a telephone conference call with the nurse and Leynes on February 5, Leynes' supervisor stated that if the company ordered special furniture for Bergen, it would have to accommodate every employee who had an injury. He raised the possibility of "effect(ing) a job change" for Bergen and changing the job requirements for an operator to exclude all persons over six feet. Finally, he told the nurse to advise her Department that he did not want to order the special equipment and set a precedent. On February 4 petitioner again visited Dr. Freeman, who agreed to prepare a note suggesting that certain medical restrictions be imposed. The note stated that, based upon the therapist's recommendations and Dr. Freeman's own evaluation, petitioner should "be placed in a work environment where he can frequently change positions," the computer terminal should be placed at eye level, his chair should be raised high enough to allow partial weight bearing by the lower extremities, and "the keyboard should be positioned so as to avoid continued cervical flexion and rotation while operating the keyboard and viewing the terminal screen simultaneously." Dr. Freeman also recommended that Bergen be allowed ten minute breaks every thirty minutes during working hours. This note was faxed by Dr. Freeman to the Benefits Administration Department. The same day, Bergen telephoned a representative of that Department, Kathy Green, who told him a ten minute break was "excessive" but he would be authorized to take five minute breaks every thirty minutes. Petitioner returned to work on February 5 and 6 and was counseled for poor attendance by his immediate supervisor. On those two days, he was given five-minute breaks every thirty minutes. On Monday, February 8, however, Leynes terminated the breaks since she says the Benefits Administration Department had never sanctioned them. When Bergen's union representative made a suggestion to Leynes that Bergen work only four hours per day, Leynes replied that such a restriction would have to come from his doctor. The next day, February 9, petitioner visited Dr. Freeman and obtained a "disability certificate" with the following restriction: "pt to work only 4 hours per day" in "light" as opposed to regular work duties. In a follow-up letter prepared on February 10, Dr. Freeman also suggested that BellSouth investigate the possibility of changing petitioner's job duties to provide him more mobility and less stress. The same day, a BellSouth nurse who observed Bergen at work commented that he was working in an incorrect job because of his size. The certificate of disability was given to Leynes, who referred it to the Benefits Administration Department for evaluation. That Department advised Leynes that such a restriction was not a "reasonable accommodation" under the Americans with Disabilities Act, it would reduce the productivity of the employee, and she should not honor the restriction. After returning to work on February 11 for one day, petitioner took "excused time and vacation days" and was absent for six days. During this absence, he had a second MRI taken which reconfirmed his earlier diagnosis. On February 17, he returned to work. On February 18, he left work due to pain and was taken to the emergency room of a local hospital. On the same day, he was given a written disciplinary warning by Leynes for unimproved attendance. In conjunction with a worker's compensation claim filed by Bergen against BellSouth on February 18, he prepared an affidavit which stated in part that "(o)n February 9, 1993, my desk was raised eight inches. My computer, keyboard and chair were not raised." A copy of the affidavit was given to Leynes. While absent on and off between February 3 and February 25, he continued to be paid on what is known as temporary partial disability. On February 23, Dr. Freeman prepared another letter recommending that petitioner refrain from working at his current operator job until he could be evaluated by an orthopedic surgeon for reconstructive surgery versus continuation of conservative therapy. This letter was given to Leynes. As it turned out, the orthopedic surgeon agreed with the continuation of conservative therapy as previously recommended by Dr. Freeman, and this opinion is embodied in a letter from the surgeon dated March 18, 1993. Finally, on March 1, 1993, Bergen's personal physician prepared a letter stating that prolonged standing by Bergen had caused "significant varicosities and leg edema" which would get worse without measures to correct the prolonged standing. With the approval of the Benefits Administration Department, Leynes began making modifications and ordering new equipment in order to accommodate petitioner's disability. Specifically, on February 9 the desk at one operator position was raised to thirty-two inches, a chair with a higher seat and larger seat pad was obtained as an interim measure, and a new, special adjustable chair was ordered on May 5. A glare-proof screen was obtained on February 16, the computer terminal was raised by placing several reams of paper under it, and the keyboard was placed at a forty-five degree angle. Finally, BellSouth created a modified stand-up position specially fitted for petitioner to allow him to alternate between a sitting and a standing position. Because these changes had not been completed by late February, and Bergen had missed his employer-arranged appointment with an ergonomics specialist as a follow-up to evaluate the changes to the work station, Bergen continued to be paid while on leave in February. On March 2, 1993, petitioner filed a complaint of discrimination with the Commission alleging that (a) he was disciplined for absences relating to his disability, (b) he was denied reasonable accommodation in his position, and (c) he was discriminated against due to his disability and sex. In his petition for relief filed on September 22, 1993, however, he alleged only that BellSouth "did not make requested medical modifications or adhere to (his) medical restrictions like they have for other employees with disabilities in (his) department." As clarified by counsel at hearing, petitioner now contends that BellSouth failed to reasonably accommodate his handicap, which prevented him from working a regular, full-time job. After the initial complaint of discrimination was executed by petitioner on February 25, 1993, he completely stopped working. At that time, Bergen was offered the opportunity to work only four hours per day, but he declined this offer saying he wanted to be paid disability leave for the other four hours and could not afford a part-time job. Thereafter, Bergen continued to be paid for his first seven days of absence, but he was then placed on furlough, which is a non-pay code, since he was not authorized by the Benefits Administration Department to be on sick leave. While absent from work in March, Bergen obtained a statement from a physical therapist recommending that he change his work position every thirty minutes and be granted a ten minute break twice an hour. In early April 1993, petitioner was at risk of being dropped from the payroll due to his excessive absences. Pending further medical evaluation, and the opportunity to fully assess petitioner's medical condition, and perhaps motivated by the discrimination complaint, BellSouth decided to temporarily loan Bergen to its engineering department where he served as an engineering clerk from April 12 until November 1993. Prior to then, BellSouth had not seriously explored whether there were other positions to which petitioner could be transferred. In any event, this satisfied petitioner's earlier request that he be temporarily placed in another job which allowed him to be more mobile. During one week in July, however, Bergen temporarily worked half a day as an operator and the other half as an engineering clerk. By then, the modifications to the work station were in place. Afterwards, Leynes asked for his comments on the work station modifications and Bergen complained that his operator desk was still not high enough, the computer screen was not at eye-level, and the keyboard needed to be moved. Also, there was no longer a standing position available for him. At the recommendation of Dr. Freeman, on August 18, 1993, petitioner was given an independent medical evaluation by Dr. Oregon K. Hunter, Jr., who specializes in clinical medicine rehabilitation. His diagnosis was cervical spondylosis without evidence of myeleopathy and possible bilateral cervical radiculopathy, which corresponded to Dr. Freeman's diagnosis. Because Dr. Hunter was unable to assess the modifications to Bergen's work station, he recommended that a further evaluation of Bergen's work station be made by an occupational therapist, and until that time, he be given "continued alternate duty." Also, he concluded that Bergen "will eventually be able to return to his operator duties, however, he may continue to experience pain and radicular symptoms even in a modified work station." BellSouth honored Dr. Hunter's recommendation and continued to allow Bergen to work as an engineering clerk pending the outcome of the work site evaluation. On September 24, 1993, a work site evaluation was conducted by an occupational therapist who evaluated the best suited position for Bergen given his height and the appropriate placement of the video display terminal (VDT). The therapist recommended that when Bergen returned to his work station, the following modifications be made: Two reams of paper be kept under the VDT: A neoprene wrist support be provided to the leading edge of the table work surface on which Bergen could rest his forearms; and A foot rest be provided to allow Bergen to rest his feet. This report was forwarded to the Benefits Administration Department, and copies were also given to Drs. Freeman, Hunter and Kern. In early November 1993, the Benefits Administration Department determined that petitioner was medically capable of performing in his job as an operator with the workplace modifications suggested in the most recent work site evaluation. That decision was made in consultation with Dr. Kern, who reviewed the medical information regarding Bergen, including the results of the independent medical examination by Dr. Hunter. Accordingly, on November 11, 1993, Leynes advised petitioner by letter that beginning November 28, 1993, he would be reassigned to his regular position in operator services. The letter noted that BellSouth had made the following accommodations: An adjustable sitting position with VOT height and wrist rest additions specified in the job analysis; A chair ordered specifically for his frame size; A foot rest; A glare-proof screen for his video display terminal; and Use of a standing position as needed for his comfort. The letter added that those accommodations would allow him to perform his job without special hours or work breaks. Petitioner was officially reassigned to his operator position on November 28, 1993. Because Bergen used vacation leave, his first day back at work was actually on December 18, 1993. Three days later, Bergen says he again started "having problems," and the same day he visited Dr. Freeman who prepared another disability certificate certifying that petitioner could only return to "light" work duties subject, however, to the restrictions as outlined in the physical abilities assessment performed on March 30, 1993. The earlier assessment had recommended part-time, light duties. When the certificate was presented to Leynes, she said she could not honor those restrictions since the Benefits Administration Department had not approved the same, and he must continue working a full tour. Because of continuing complaints by Bergen, BellSouth made arrangements for a functional capacity test to be given on December 28, 1993, by the Medical Rehab and Sports Medicine Center in Jacksonville to determine if permanent medical restrictions or limited work hours were appropriate. The report's assessment concluded in part that Bergen was functional to return to work within his demonstrated capacities; restricted heavy to very heavy labor category with unrestricted positional tolerances, although sitting as well as prolonged upper extremity forward reaching produces the greatest amount of pressure on the disc. His symptoms would be likely to increase with these positions/job tasks. In plainer terms, this meant that because petitioner's job category (operator) was considered "light," and the assessment indicated that Bergen could perform a job in the heavy labor category without restrictions, he could return to a modified work station without restrictions. In an addendum to the report issued on February 28, 1994, it was pointed out that "stationary static positions can result in limited flow of fluid through spinal facet joints and disc resulting in stiffness and decreased nutrition to joints and discs." Also, a recommendation was made that Bergen "frequently change position as frequently as possible, (i. e., every 30 minutes) and maintain an active exercise program." Otherwise, there was no impediment to Bergen assuming his regular duties. A copy of this report was given by BellSouth to Dr. Freeman, who was asked to consider the report in light of his most recent disability certificate prepared on December 21, 1993, and petitioner's continuing "complaints," even after modifications to his work station had been made. Based upon the results of this latest test, Dr. Hunter concluded in a letter dated March 15, 1994, that petitioner should "be released to work based on the level of function that he demonstrated within that evaluation." In a second letter dated March 29, 1994, he concurred with a recommendation of Dr. Freeman that "job duties which require the use of (petitioner's) arms held in an extended position would probably exacerbate his symptoms and this would best be modified appropriately." As clarified at hearing, Dr. Hunter explained that petitioner should not extend his arms straight out while working, and he could not sit in one place continuously for hour after hour without being able to change positions. With proper ergonomic modifications and a certain degree of mobility, however, Dr. Hunter was of the opinion that petitioner could assume his regular job responsibilities without exacerbating his condition. Dr. Hunter further concluded that the physical condition was permanent, and that petitioner would likely experience pain the rest of his life, no matter what he did at work. Although Dr. Freeman continued to recommend ten minute breaks every hour "if possible," he basically concurred in Dr. Hunter's ultimate recommendation and deferred to that doctor's judgment in terms of restrictions and limitations. At the same time, Dr. Kern concluded that ten minute breaks every hour are not medically necessary because petitioner's problem is in the neck and only neck mobility is required. According to Dr. Kern, petitioner has aggravated his condition by using improper work techniques at his work station, such as sitting with his arms outstretched. If this technique is corrected, petitioner should eliminate many of his problems. On March 2, 1994, the Benefits Administration Department advised Bergen by letter that in view of the various medical evaluations and modifications to his work site, permanent medical restrictions, including a ten minute break every thirty minutes, were not appropriate. It is noted that since December 1993, Bergen had been given ten minute breaks every thirty minutes even though such breaks had not been approved by the Benefits Administration Department. The letter added that this conclusion was based on the fact that he "demonstrated no inability to function in a heavy duty job, let alone a sedentary job such as (his) present assignment." This information was reconveyed to Bergen in a meeting with Leynes on March 28, 1994. At the time of hearing, BellSouth had only four operator vacancies in Gainesville and no vacancies in that office's engineering department. This is because there is relatively little employee turnover in the Gainesville office. Since 1993, petitioner has had on file requests (bids) to transfer to a position as an outside plant technician in Daytona, Gainesville, and Lake City, engineering clerk in Gainesville, and service technician in Gainesville. However, none of these positions have been open. In April 1994 the company offered to transfer Bergen to a vacant service technician position in Dade County but he declined to accept a transfer to that location. Since March 9, 1994, and through the time of hearing, all of Bergen's absences from work have been without pay and coded as "FMLA" (Family Medical Leave Act). Under that federal law, which became effective on February 5, 1994, covered employees are authorized absences due to medical reasons of up to ninety days without pay. Therefore, by now, petitioner's authorized absences have probably ended. In challenging the accommodations offered him, Bergen asserts that other BellSouth employees, all of whom happen to be female, were given accommodations consistent with the recommendation of their doctors after suffering injuries and illnesses. Such accommodations included part-time work and reassignment to other jobs within the company. All of these cases, however, are distinguishable from Bergen's situation. For example, Patricia Peres, formerly an operator but now a sales representative, received special accommodations after she suffered three ruptured discs and misaligned her pelvic area in an automobile accident in May 1989. Because of the severity of these injuries, Peres was absent from work for two months and then worked on a part- time basis for two weeks after returning. She reinjured her neck in another automobile accident in February 1994. At her doctor's request, and without requiring a second medical opinion, BellSouth allowed Peres to work only half days and take a five-minute break every thirty minutes until she fully recuperated. Another operator, Judy LaSalle, had surgery in 1991 on her arms due to Degarian's disease and was forced to wear casts for five months on both arms from shoulder to wrist. After she returned to work, BellSouth agreed to her doctor's suggested weight lifting limitations, it placed ergoarms on her desk to rest her arms, and it allowed her to work a four-hour shift the first week, a six-hour shift the second week, and a seven and one-half hour shift the third week. Also, it authorized her to take work breaks every thirty or forty-five minutes. She is now back to work full time without restrictions. Petitioner also noted that a former operator, Rosemary Jackson, was given medical restrictions in 1992. In that case, the employee had Crohn's Disease (an enlargement of the intestines) which necessitated numerous restrictions, and Jackson died a short time later. Finally, Linda Davis, a service representative, had a rheumatoid arthritis bilateral hip and was unable to climb stairs to her permanent job. Because of this condition, she was temporarily loaned for five months to another department where she was able to work on the ground floor. Although Bergen continues to experience some degree of pain, his latest functional capacity evaluation places him in the "very heavy labor" category without restrictions. This means that he can engage in that category of work without medical restrictions. As a consequence, his present ability to engage in major life activities, such as work, is not substantially limited by his medical condition. In some measure, however, he does not enjoy the full and normal use of his physical facilities, and Dr. Hunter has established that the condition is permanent. Therefore, under this latter test, Bergen is a person with a handicap.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 22nd day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5814 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 15. 4. Covered in conclusions of law. 5-7. Partially accepted in finding of fact 2. 8. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 6. 11. Partially accepted in finding of fact 7. 12-13. Partially accepted in finding of fact 3. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17-18. Partially accepted in finding of fact 9. 19. Partially accepted in finding of fact 11. 20. Partially accepted in finding of fact 12. 21. Rejected as being unnecessary. 22-23. Partially accepted in finding of fact 12. 24. Partially accepted in finding of fact 13. 25-26. Partially accepted in finding of fact 12. 27. Partially accepted in finding of fact 13. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 13. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 13. 32. Partially accepted in finding of fact 16. 33-34. Partially accepted in finding of fact 17. 35. Partially accepted in finding of fact 15. 36. Rejected as being unnecessary. 37. Partially accepted in finding of fact 17. 38. Partially accepted in finding of fact 1. 39. Partially accepted in finding of fact 20. 40-42. Partially accepted in finding of fact 21. 43-44. Partially accepted in finding of fact 24. 45. Partially accepted in finding of fact 45. 46-47. Partially accepted in finding of fact 23. 48. Rejected as being cumulative. 49. Partially accepted in finding of fact 18. 50. Partially accepted in finding of fact 23. 51. Partially accepted in finding of fact 26. 52. Rejected as being unnecessary. 53. Partially accepted in finding of fact 26. 54-58. Partially accepted in finding of fact 28. 59. Partially accepted in finding of fact 30. 60-62. Partially accepted in finding of fact 29. 63. Rejected as being unnecessary. 64. Partially accepted in finding of fact 30. Respondent: Partially accepted in finding of fact 2. Rejected as being unnecessary. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in findings of fact 4 and 6. Partially accepted in findings of fact 8 and 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 20. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 25. Partially accepted in finding of fact 16. Partially accepted in finding of fact 26. 15-16. Partially accepted in findings of fact 23 and 24. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 George F. Schaefer, Esquire The Liberty House 1005 S. W. 2nd Avenue Gainesville, Florida 32601-6116 Paul T. Stagliano, Esquire Stephen T. Breaux, Esquire Suite 4300 675 West Peachtree Street, N. E. Atlanta, Georgia 30375
Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: constructively discharging Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent Lake County Sheriff's Office (LCSO), constitutes an "employer" as defined in Chapter 760, Florida Statutes. Chris Daniels took office as the elected Sheriff of Lake County, Florida, in January 2005. He had been with Respondent LCSO for 18 years. The sheriff is the chief law enforcement officer for Lake County; operates the Lake County Jail for the Board of County Commissioners; and manages security and bailiffs for the Lake County Courthouse. His responsibilities also include providing final approval for staffing levels at the Lake County Jail. In 2005, Petitioner had been employed as a detention officer at the Lake County Jail for 16 years. He is a certified corrections officer. Corrections/detention officers assigned to the inmate housing/security areas at the jail work 12-hour shifts from 6:00 a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or "D" Squads. The squads rotate from day to night, and from night to day, shifts every four months. Officers assigned to inmate security are not normally assigned permanent shifts. Petitioner was such an officer. Working on rotating shifts is an essential function of working in the inmate housing area of the jail, as detailed in the job description for corrections officers as follows: . . . ensures a timely transmission of pertinent information and materials to other correctional personnel assigned to the same and/or the next shift. Petitioner understood at the beginning of his employment with LCSO that he was expected to work rotating shifts, and he did, in fact, work rotating shifts until 1996. Other corrections officers assigned to laundry, the jail kitchen, inmate transportation and other administrative functions permanently work days from 8:30 a.m. to 5:00 p.m. Monday through Friday, without shift changes. Such positions with permanent day shifts have become available over the years. However, Petitioner last sought such a position in 1997 or 1998. Petitioner was working as a detention/corrections officer for Respondent when he was diagnosed with diabetes in 1996. Petitioner's diabetes causes tingling in his hands and feet, impotence, floaters in his eyes, dizziness, profuse sweating, frequent urination, a weakening immune system and occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals that he takes multiple oral medications and that each kind of medication ideally should be taken at the same time of day, each day, but there are instructions on how to compensate if a dose is missed. With the exception of working rotating shifts, Petitioner was able at all times to perform the essential functions of a corrections officer for Respondent. The Veterans’ Administration pays Petitioner $218.00 per month because it believes his diabetes was induced by Agent Orange he encountered while in Viet Nam. At Petitioner's request, Respondent allowed Petitioner to work a permanent day shift from 1996 to June 30, 2005, when he retired. Petitioner testified he has worked in the past as a military medic and as a physician's assistant in correction facilities, so he is knowledgeable about the horrific, and sometimes fatal, effects of uncontrolled diabetes. Petitioner expected to live a normal life so long as he controlled his diabetes. Petitioner claims to have explained over the years to all his superiors that he needed to consistently take his medications at the same time of day. However, he did not offer any evidence in the present proceeding to explain why he could not take his medications consistently on a 24-hour clock, e.g. during nights, as opposed to during days. There have been periods when he experienced problems with his diabetes while working a permanent day shift. His medications have been adjusted several times since 1996. All witnesses agreed that Petitioner spent 18 months alone in a permanent day position in the third-floor control room. Petitioner claimed that he was assigned this long period of duty on the third-floor as “punishment” for being allowed to permanently work a day shift. He maintained, without any supporting evidence, that being assigned to a single position for more than a few months this way was unusual. However, although Respondent assigned Petitioner to the third-floor control room alone for a duration of 18 months, Respondent also assigned a non-diabetic employee alone there for about one year. Petitioner speculated, again without any supporting evidence, that the non-diabetic employee was also being punished for something. Both Petitioner and the non-diabetic employee experienced being confined to the control room without a restroom. Having to urinate when no other officer could stand- in for them created a hardship on both men. On one occasion, the non-diabetic employee urinated in a garbage can. At the date of hearing, Gary Borders had been with LCSO for 17 years and served as its Chief Deputy.1/ On the date of hearing, and at all times material, Chief Borders’ duties included responsibility for the day-to-day operations of the Lake County Jail and the Lake County Courthouse and for training. Petitioner claims to have frequently protested to many superiors about not having a restroom on the third-floor and not being allowed to bring food in for his diabetes. He also claimed to have specifically asked Chief Borders to be transferred from service on the third-floor, but Chief Borders did not recall more than one vague conversation concerning Petitioner’s complaint about how long Petitioner had been posted there and that he had told Petitioner he, Borders, had no problem with Petitioner’s being transferred elsewhere in the jail. It is not clear when, precisely, this 18 month-period occurred. Because Petitioner was on a permanent day shift from 1996-1997 to 2005 (eight years), and Petitioner testified his 18-month posting on the third-floor was "over" and was from 2003-2005, his time on the third-floor was not affirmatively shown to have occurred within the 365 days immediately preceding the filing of his Charge of Discrimination with FCHR on December 8, 2005. When Sheriff Daniels took office in January 2005, Chief Borders advised him that because the date for the squads to rotate shifts (see Finding of Fact 4) was due to occur on May 1, 2005, the number of persons assigned to permanent shifts was affecting Chief Borders' ability to make assignments. When corrections officers working in inmate housing of the jail are assigned permanent shifts, staff shortages can occur on other shifts. Chief Borders further advised the new sheriff that he, Borders, was receiving additional requests for permanent shifts. While discussing why there were so many employees assigned permanent shifts, and not subject to the standard four months' rollover of the squads from day-to-night and night-to- day shifts, Sheriff Daniels and Chief Borders concluded that LCSO needed a formal method of differentiating between those employees who genuinely needed a permanent day or night shift and those employees who merely wanted a permanent shift assignment. To determine which employees needed a permanent shift as an accommodation for their specific condition or situation, Sheriff Daniels instructed Chief Borders to send a memorandum to the 12-14 employees assigned to permanent shifts, requiring those employees to provide medical evidence of their need for a permanent shift assignment. On March 25, 2005, Chief Borders sent all employees assigned to permanent shifts the following memorandum: There is a requirement for rotating shift work for Detention Deputies, Auxiliary Detention Deputies and Deputy Sheriffs at the Lake County Sheriff's Office. Please ask your physician to review the Job Description for Detention Deputy (or Auxiliary) and ask if you can perform all the job requirements. If you are cross- sworn, also have your physician review the Deputy Sheriff job description and ask if you can perform all of the job requirements for that position. When your job description(s) have been reviewed, bring your physician's letter and all related supporting material (diagnosis, prognosis, treatment notes, test results and any other documents that would assist the agency in evaluating your request) to me so that our agency physician can review them for possible accommodation. Because shift changes will take place on May 1, 2005, you must have your documents to me no later than 5:00 P.M. on Friday, April 15, 2005. If I do not hear back from you by Friday, April 15, 2005 at 5:00 P.M., I will take it that you are available for rotating shift work assignment. The process envisioned by the Sheriff and Chief was that when an employee, who wanted an accommodation, provided the requested information from his own treating physician, that employee's supervisor would pass the information along to LCSO's physician, and an interactive process would begin. As of the date of hearing, LCSO had employees working in modified jobs, including job sharing, and an accommodation had been made for a person in a wheelchair. In 2005, LCSO also fully intended to accommodate those employees who provided proof from their physicians of their need for other accommodations. Petitioner testified that he did not want to repeatedly roll over from day-to-night shifts every four months because past experience had taught him that each time his shift changed, it took him at least two weeks to properly regulate and space his intake of food, liquids, and medications, in such a way that his diabetes was controlled and he felt alert and capable. In response to receiving the March 25, 2005, memorandum, Petitioner presented Chief Borders with a note from Petitioner's primary physician, Dr. Gelin, written on a prescription pad, stating: brittle diabetic pt needs to work day shift only. Petitioner did not present any other written information in response to Respondent LCSO’s detailed request. Petitioner testified that he discussed Dr. Gelin’s note with Chief Borders to the extent that he told Borders that if anyone on behalf of LCSO phoned Dr. Gelin, Dr. Gelin would discuss or fax further information to that person; Chief Borders does not recall this conversation. Chief Borders is a diabetic himself, but he had never heard the term, "brittle diabetic." It is Petitioner's position that because, in Dr. Gelin's private conversations with Petitioner, Dr. Gelin had told Petitioner that “any doctor” should know the sequelae and effects of "brittle diabetes," all Petitioner’s LCSO superiors needed to do was pass on Dr. Gelin’s prescription note to LCSO’s consulting physician in order for Petitioner to be accommodated. Petitioner believed it was his superiors' duty to make Dr. Gelin submit the written materials they wanted. Sheriff Daniels generally distrusted the information that physicians submitted on prescription pads, because, in his experience, when the employee or physician was pressed for details, there was often no supporting information forthcoming. Therefore, he did not believe the information on Petitioner's prescription slip, as described to him by Chief Borders, was sufficient to begin the interactive process with LCSO’s Human Resources Department or its consulting physician. Neither Sheriff Daniels nor Chief Borders presented Petitioner's prescription slip to them. It was decided between the Sheriff and the Chief, that Chief Borders would try to get more detailed information from Petitioner. Petitioner testified that he tried to get more information from his primary physician, Dr. Gelin, but Dr. Gelin would not provide in writing the detailed information requested by LCSO’s March 25, 2005, memorandum. On April 22, 2005, Chief Borders wrote Petitioner that Dr. Gelin's prescription pad note was insufficient and that Petitioner would not be reassigned to a permanent day shift position, stating: I have reviewed the information provided by your physician and find there is insufficient evidence presented to justify a permanent shift assignment. As such, your request is denied. You will rotate day/nights with your assigned shift during the normal rotation. None of the 12-14 employees assigned to permanent shifts, had submitted the requested information, so all of them, including Petitioner, were assigned to a rotating shift. The Sheriff and Chief received no report of complaints from any employee. However, on April 26, 2005, Petitioner received a memo stating that effective May 4, 2005, he would be assigned to "C" squad. "A" Squad, where Petitioner was then assigned, was scheduled to rotate from day shift to night shift on May 1, 2005, and "C" Squad was due to rotate from the night shift to the day shift on the same date. Accordingly, LCSO’s purpose in transferring Petitioner to “C” Squad was to provide him with four more months (until September 1, 2005) to obtain the required medical opinion and detailed supporting documentation from his treating physician. The "A" to "C" Squad change also would have allowed Petitioner to remain on a day shift, without interruption, and allow him an additional four months in which to gather medical information from any appropriate source to support his request to indefinitely remain on a permanent day shift. In fact, Petitioner was regularly seeing Dr. Flores, at the Veterans’ Administration, as well as Dr. Gelin. Dr. Flores coordinated oversight of Petitioner's medical condition with Dr. Gelin, who is Petitioner's private physician. However, Petitioner did not approach Dr. Flores, and he did not go back to Dr. Gelin, until after Petitioner retired. Petitioner had hoped to work another six years before retiring, but on May 13, 2005, while still assigned to the day shift, Petitioner submitted a letter of resignation, hoping that someone in his chain of command would try to talk him out of leaving. He expected his supervisors to "workout" a permanent day shift for him, instead of permitting him to retire.2/ Petitioner's resignation letter stated: Regrettable [sic] I am submitting my letter of resignation effective June 30, 2005. Your recent decision denying me permission to remain on the day shift in spite of my doctor's recommendation to remain on the day shift because of my medical condition (brittle diabetic) has forced me to retire earlier than I had planned to. There is no other way that I can regulate my medication switching from days to nights . . . Respondent never required Petitioner to work the night shift, and he never did work the night shift after 1996-1997. Petitioner gave notice of his retirement in May 2005, rather than work in "C" Squad on the day shift until September 1, 2005, or continue to try to obtain additional medical information that would allow him to indefinitely remain on a permanent day shift. Petitioner elected to retire effective June 30, 2005, because, upon advice of “Retirement” he believed it was more financially beneficial for him to retire in June 2005, rather than wait until January 2006.3/ Since January 1, 2006, Petitioner has been employed managing real property in Florida and Costa Rica. Petitioner testified that when he retired, he could perform all the duties required by his detention/corrections officer job description, and perhaps other duties as well, except for the rotating shifts. He believes, but offered no supporting documentation, that rotating shifts are counter- productive and are on their way out in most jails. He further testified that he could probably even work the rotating shifts required by this employer but he believed that to do so would have put him in a health crisis due to his diabetes and multiple medications.
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. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 25th day of January, 2007.
The Issue The issue in this case is whether the Petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case. At the hearing the Respondent offered eleven exhibits into evidence and presented the testimony of two witnesses, Charles Crozier and Sam Visconti. The Petitioner offered two exhibits, both of which were rejected. The Petitioner did not call any witnesses to testify on his behalf. He expressly declined to be sworn as a witness and testify on his own behalf, even after being specifically advised of his right to do so and being specifically advised that no findings of fact could be made on the basis of his unsworn assertions.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Leroy Williams-El, commenced his employment with the Respondent, Florida School for the Deaf and the Blind, in 1977. His last position was Dorm Supervisor I, which position he had held since the 1980-81 school year. The position Petitioner held was somewhat critical in that not only did he have to oversee the portion of the dormitory that was assigned to him, but he was also specifically in charge of the care and safety of some ten or twelve students. The Petitioner was a permanent employee, but his work period coincided generally with the school year and ran for ten months, generally from August to June each year. The Petitioner's last official work day was June 11, 1985. He was not in a work status during the summer of 1985. The dorm supervisors were supervised by Charles Crozier, Director of Student Life. At the end of the 1985 school year, the dorm supervisors remained at the school for approximately a week after the students had left and the administration conducted a post-planning week. During the post-planning week, Crozier met with the employees, discussed the upcoming 1985-86 school calendar, and Petitioner and the other dorm supervisors were told that their date to report back to work was August 26, 1985. In addition to discussing the return date with the various employees at the June post-planning meeting, Crozier, under date of August 21, 1985, mailed a letter to the Petitioner at his last known address as it appeared in the school file, that is, 75 1/2 Lincoln Street, St. Augustine, Florida 32084, reminding the Petitioner that his return date for reporting back for work was August 26, 1985. The Petitioner did not return to work as instructed on August 26, 1985. On August 27, 1985, the Petitioner called Crozier and advised Crozier he had been unable to report to work on August 26, 1985. He was advised by Crozier that he must report to work on Thursday, August 29, at 8:00 a.m. (Exhibit 2) The Petitioner did not report to work on August 29, but instead again called Crozier. Crozier, at this point, got the personnel officer of the school, Sam Visconti, on the phone with him. During the conversation on August 29, 1985, the Petitioner requested that the school "transfer" him to a position with the Department of Health and Rehabilitative Services in Miami. Crozier and Visconti both explained to him that the school had no authority to "transfer" the Petitioner to another job with another agency in another city. He was told that he should report to work immediately or submit a request for leave without pay. At the time of Petitioner's telephone call on August 29, 1985, Crozier had already prepared a letter dated August 29, 1985, advising the Petitioner that inasmuch as he had failed to report to work on August 26 and had not reported on August 29 as directed, he was being given an official reprimand. He was further advised that if he did not contact Crozier by September 4, 1985, he would be suspended without pay and failure to report to work would result in his termination. The Petitioner did not report to work on September 4, 1985, as instructed. On September 6, 1985, Crozier received a call from Lynn Rowe, Visconti's assistant in the personnel office, relaying a telephone call from a lady purporting to be the Petitioner's sister. Ms. Rowe was inquiring whether or not Crozier had any instructions for the Petitioner. Crozier advised Ms. Rowe that the Petitioner was to report to work by the time his normal work week would start, which would be Sunday, September 8. The Petitioner did not report to work on September 8, September 9, or September 10, 1985. The Petitioner did not call in and make contact with Crozier or Visconti on any one of those days. When the Petitioner did not report to work for those three days, Crozier again contacted Sam Visconti, the personnel officer, and reported this fact to him. At no time during the period from August 26 through September 10, 1985, did the Petitioner request from Crozier or Visconti, the personnel officer, annual leave, leave without pay, or any other type of approved leave. The conversations he had with Crozier and Visconti concerned a request that he be "transferred" to a job with the Department of Health and Rehabilitative Services in Miami. On September 11, 1985, after Crozier advised Visconti of the Petitioner's failure to report to work, Visconti prepared a dismissal letter under the date of September 11, 1985. This letter summarized the chronology of events concerning Petitioner's failure to report to work and advised the Petitioner that he was considered to have abandoned his position. Petitioner was further told of his right to seek a determination and review of his abandonment. The letter of September 11, 1985, was mailed to the Petitioner's last known address in the personnel file, which was the St. Augustine address. Late in the afternoon of September 11, Petitioner called Visconti and informed him of the new address in Miami, Florida. Visconti then sent an additional copy of the same letter to Petitioner on September 13, 1985, to the Miami address. The Florida School for the Deaf and the Blind is a separate state agency and is not in any way connected with the Department of Health and Rehabilitative Services. Furthermore, the Florida School for the Deaf and the Blind has no offices or positions available in the Miami area. Visconti and Crozier discussed with Petitioner his repeated requests for a "transfer" on more than one occasion and repeatedly advised him the Florida School for the Deaf and the Blind had no authority to transfer him to a different job with another state agency. At no time did the Petitioner request a leave of absence from Visconti. Visconti advised the Petitioner of the critical nature of his position as a Dorm Supervisor I and explained to him the difficulties created by Petitioner's failure to return to work. Visconti further advised the Petitioner that if he wanted a leave of absence, the personnel officer had to receive the request for the leave of absence in writing and the president of the school would consider the request after it had been received. It was imperative, however, that the Petitioner either bring or mail in a written request for a leave of absence. The Petitioner did not send a request for leave of absence to the school. The last conversation Crozier had with the Petitioner occurred sometime in late October or November and concerned a request by the Petitioner that Crozier send a copy of the Petitioner's college transcripts to an HRS office in Miami. At that time the Petitioner did not request to be re-employed or to be reinstated. Crozier mailed the materials as requested. Williams did not report to the school for employment on or after August 26, 1985, and was considered to have resigned effective September 10, 1985.
Recommendation Based on all of the foregoing it is recommended that a Final Order be issued concluding that the Petitioner abandoned his position and that his petition should be dismissed. DONE AND ORDERED this 11th day of July 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July 1986. COPIES FURNISHED: Mr. Leroy Williams 1360 N.W. 199th Street Miami, Florida 33169 Mr. Leroy Williams-E1 10566 McLaurin Road Jacksonville, Florida 32216 Mr. Samuel R. Visconti Personnel Officer Florida School for the Deaf and the Blind 207 North San Marco Avenue St. Augustine, Florida 32084 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32301 Gilda H. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Richard L. Kopel, Esquire Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the findings of fact proposed by each of the parties. Findings proposed by Petitioner The rulings which follow immediately below refer to the five (5) unnumbered paragraphs which appear under the caption "Facts To Examine" in Petitioner's post-hearing document titled Order To Commence On Final Argument. The paragraphs are referred to in the order in which they appear. First paragraph on first page: First sentence is rejected as constituting a conclusion not supported by the evidence. The last sentence is accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence. First paragraph on second page: The first two sentences are accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. Second paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence. Third paragraph on second page: This paragraph is rejected as constituting argument rather than proposed findings. Fourth paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence. Findings proposed by Respondent All of the findings proposed by the Respondent have been accepted with a few editorial modifications in the interest of clarity and accuracy. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION LEROY WTLLlAMS-EL, Petitioner, vs. DOA Case No. AB-85-18 DOAH Case No. 85-3600 FLORIDA SCHOOL FOR THE DEAF AND BLIND, Respondent. /
The Issue The issue is whether Petitioner may lawfully discipline Respondent due to excessive absences from work.
Findings Of Fact Petitioner employed Respondent as a police officer in the Operations Division of the Cape Coral Police Department (Department) from October 5, 1987, through approximately April 27, 1998, when Petitioner terminated her employment. As detailed below, Petitioner monthly provides its employees with a specified amount of leave, based on their years of service. Petitioner credits all leave in a single account. Employees then draw on their leave account by taking scheduled and unscheduled leave. This case involves Respondent's use of allegedly excessive amounts of leave. In 1989, Respondent used 125.76 hours of unscheduled leave. On May 23, 1989, she received an interim performance evaluation noting that she was "below acceptable" in unscheduled leave time and needed to improve her relations with other employees. On October 13, 1989, she received an annual performance evaluation stating that she had had 18 days "sick leave" in the preceding 12 months and was below "operational standard" in attendance and relations with others; all of her other categories were marked as meeting operational standard. The attached narrative notes a "slight improvement" since her May 1989 interim performance evaluation. In 1990, Respondent used 198.5 hours of unscheduled leave. Her October 12, 1990, annual performance evaluation states that Respondent was again below operational standard in attendance with 23.25 days of "sick leave." She had raised her relations with others to operational standard and work habits to above operational standard. The narrative attached to the evaluation states that the evaluator has spent a sizable amount of time conferring with Susan regarding causes to her illnesses and resulting time off due to illness. Officer Von Halla does have problems with migraine's and when she experiences one, she is [less than] an effective part of the shift in fulfilling her normal duties. I have tried to understand why she experiences so many migraines and have suggested different activities (i.e. physical exercise, stress reduction). I am confident that despite the significant amount of time taken due to illness, when this officer calls in sick, she is sick and does not use this time for other unknown reasons. I feel, currently, Officer Von Halla is attempting to minimize the amount of times she calls in sick. Despite some improvement recently, Officer Von Halla still is in need of progress in this area so her time reserved starts reflecting this. The narrative concludes that Respondent can improve her weak point, which is attendance, by "finding new ways to minimize the migraine potential and making a genuine effort towards this." Another evaluative document speaks in a very different tone from the annual performance evaluation, which is signed by a sergeant who was Respondent's immediate supervisor. On October 2, 1990--only 10 days before the 1990 annual evaluation-- a captain reviewed Respondent's use of unscheduled leave and warned: you are hereby notified that this level of unscheduled leave time usage will no longer be tolerated. You will be required to achieve a level of usage that is consistent with the national and department average which equates to approximately sixty hours per year, or five hours per month. If you fail to maintain this rate between October 1, 1990 and December 31, 1990 I will request that the Chief of Police consider terminating your employment effective January 1, 1991. If you are successful, you will be expected to maintain this average with the exception of documented major medical complications that require the use of extended leave. By memorandum dated December 14, 1990, from the captain to the police chief, the captain stated: On October 2, 1990, I advised Officer Von Halla that she would be required to maintain an acceptable level of unscheduled leave usage through December 31, 1990. The level of usage was established at five (5) hours per month, or a total of 15 hours for the period of October 2, 1990, through December 31, 1990. . . . Since October 2, 1990, Officer Von Halla has chosen to utilize forty (40) hours of leave. Thirty-two (32) hours were for illness as noted by her chiropractor and eight (8) for unexpected visitors. The captain's memorandum reasons: "In analyzing Officer Von Halla's unscheduled leave, it is clear that her utilization of unscheduled leave far exceeds any norms and Officer Von Halla is clearly abusing this city benefit." The memorandum states that, after consulting with the city attorney and city manager, the captain was recommending that Petitioner initiate termination proceedings against Respondent. By memorandum dated January 17, 1991, the captain asked a lieutenant to convene a Command Review Board to evaluate Respondent's excessive absenteeism and her violation of three groups of general orders prohibiting feigning of illness and failing to perform duties, abusing sick leave, and engaging in any conduct adversely affecting the morale and efficiency of the Department. The memorandum explains the last alleged violation as noting that the department had had to use 66 hours of overtime, at a cost of $1125, to cover shift shortages caused by Respondent's unscheduled absences. The Command Review Board sustained the allegation that Respondent had abused her unscheduled leave, but rejected the allegations of feigning illness and failing to perform duties and engaging in any conduct adversely affecting the morale and efficiency of the department. Accordingly, the Command Review Board recommended that the police chief suspend Respondent without pay for one day. By memorandum dated February 2, 1991, the police chief adopted the findings and determinations of the Command Review Board and suspended Respondent for one day. By memorandum dated February 14, 1991, Respondent protested the proposed discipline and demanded a hearing. The arbitrator entered a decision on June 24, 1991, that the police chief had just cause for suspending Respondent for one day without pay. Respondent served this suspension. The next annual performance evaluation is dated January 25, 1992. Respondent earned marks of above operational standard in job knowledge, quality of work, initiative, work habits, and appearance. Her only mark of below operational standard was in attendance. In the preceding 15.5 months, Respondent had used 18 days of "sick leave" and had one day without pay, due to her exhaustion of leave. From May 1990 through April 1991, Respondent used 148 hours of unscheduled leave. The evaluations and memoranda from 1992 through 1994 are largely the same: average or above-average performance in all areas but attendance. The records note only the excessive use of unscheduled leave, but do not attribute the use to fraud. From January 13, 1994 through December 26, 1997, Respondent used 691.72 hours of unscheduled leave. On February 12, 1995, the former captain, now a major, recommended that the Department suspend Respondent without pay for three days due to excessive use of unscheduled leave. By memorandum dated February 27, 1995, the police chief, "with some reluctance," concurred with the recommendation of three days' suspension. On April 18, 1995, a Departmental disciplinary review board met and failed to agree on corrective action. The board recommended only that the Department remove Respondent from field duty and place her in a noncritical position. Upon further deliberations, the board agreed upon a two-day suspension. Respondent served this suspension in June 1995, and the following month a quarterly evaluation dated July 1, 1995, notes that she was still using unscheduled leave. A memorandum dated September 10, 1995, notes that Respondent used 213 hours of unscheduled leave in the first eight months of 1995. By memorandum dated September 20, 1995, the major and three of his subordinates, including the person with immediate supervisory authority over Respondent, recommended to the police chief that the Department terminate Respondent due to excessive use of unscheduled leave. Rejecting the recommendation for termination, the police chief imposed a 30-day suspension without pay, based partly on the assurance of Respondent's physician that the cause of her constant illness had been corrected. Respondent served her suspension from November 22- December 21, 1995. Quarterly evaluations in June 1996 and March 1997 note some improvement in the use of unscheduled leave. From October 1996 through September 17, 1997, Respondent used 180 hours of unscheduled sick leave. From October 1, 1997, through January 26, 1998, Respondent used 82 hours of unscheduled leave. By memorandum dated January 26, 1998, the major advised the police chief of Respondent's continued use of unscheduled leave and recommended termination. By notice to Respondent from the police chief dated February 13, 1998, the chief advised Respondent that he was considering disciplinary action, including termination. The notice cites the following grounds from Article Seven, Section C, Ordinance 50-94: excessive unauthorized tardiness or absence from work, violation of Department work rules or operating procedures, actions or conduct detrimental to Petitioner's interests, or any other properly substantiated cause that adversely affects Petitioner. The notice alleges that Respondent's conduct also violates department General Order D-1.IV.36, which prohibits excessive use of unscheduled leave. The notice summarizes Respondent's past use of unscheduled leave and the discipline that she had received. The notice asserts that she had used 96 hours of unscheduled leave in the past four months. By letter dated March 12, 1998, Respondent advised the police chief that her ear, nose, and throat physician had placed her on Predisone, which had eliminated her debilitating headaches. By letter dated March 16, 1998, the police chief provided Respondent final notice of proposed disciplinary action for the four grounds mentioned in the prior notice. Respondent has raised an issue of disparate treatment. However, the record fails to reveal other, similarly situated employees with comparable patterns of usage of unscheduled leave. The record contains a detailed record of Respondent's relevant payroll history from January 1, 1994, through May 1, 1998, on which date Petitioner terminated her. By year, these records disclose the following totals of hours for unscheduled leave and leave without pay, the latter of which is due to Respondent's exhaustion of her granted leave: 1994--190 and 48.22; 1995--201 and 148; 1996--94 and 42; 1997--174 and 58; and 1998 (four months)--32.72 and 0. The respective totals are 691.72 and 296.22 hours. Respondent's use of unscheduled leave and leave without pay far exceed the averages for the Department. Respondent is a member of a collective bargaining unit, which is represented by the Florida State Lodge of the Fraternal Order of Police (FOP). Petitioner and FOP negotiated a collective bargaining agreement in effect from October 1, 1997, through September 30, 2000 (Agreement). Article 3, Section 1, of the Agreement provides: Except as specifically abridged or modified by a provision of this Agreement, City will continue to have, whether exercised or not, all of the rights, powers and authority heretofore existing, including, but not limited to, the following: . . . to hire, transfer, promote and demote employees; to direct employees, to take disciplinary action up to, and including, termination; to relieve employees from duty because of lack of work or for other legitimate reasons; [and] to issue rules and regulations . . .. Article 10, Section 2, of the Agreement describes the forms of discipline as follows: In accordance with Police Department General Order D-1 (as dated April 1, 1993), forms of corrective action will be utilized by City with the approval of the Police Chief shall include: Counseling or Re-Training--to correct and improve employee performance; Reprimand--a written statement warning the employee of the consequence of future misconduct of a similar nature; Suspension-- suspension from duty without pay; Demotion--a change to a position of lesser responsibility and salary; and Termination--dismissal from the Police Department. Article 10, Section 3, of the Agreement provides that Petitioner shall use "[p]rogressive corrective action," unless the severity of the offense dictates a more severe action. Article 11 of the Agreement provides that Petitioner may take disciplinary action against an employee for "just cause." Article 15, Section 1(a), of the Agreement grants employees with five or less years of continuous service 25 days of annual leave per year. Article 15, Section 1(b), grants employees with 6-10 years of continuous service 30 days of annual leave per year. The remaining subsections grant more leave based on years of service. Article 15, Section 1(g), of the Agreement provides: The use of annual leave for other than illness must be scheduled with the employee's supervisor. In case of illness, an employee must notify his/her supervisor not later than two (2) hours before the beginning of the scheduled work day or in accordance with Police Department Rules and Regulations. The Agreement provides that Petitioner may discipline covered employees for "just cause," but does not identify what constitutes "just cause." Ordinance 50-94 (Ordinance) sets forth the rules and regulations governing all of Petitioner's employees. Article One, Section B.2, states that the Ordinance covers employees who are parties to a collective bargaining agreement, "except that in the event of a conflict between the terms of this Ordinance and the collective bargaining agreement, the collective bargaining agreement shall govern." Article Six, Section E, provides that an employee may be dismissed for "just cause," but that the department head must comply with the procedures in Article Seven prior to termination. Article Seven, Section B, requires progressive discipline for "the same or similar conduct by the employee," although Petitioner reserves the right to impose the most severe discipline as an initial measure "when circumstances warrant." Article Seven, Section C, cites several grounds for discipline, including "[g]ross neglect of duty or specific serious failure to perform assigned duties"; "[m]ental or physical impairment, normally as supported by written documentation from not less than two licensed physicians, that prevents the employee, even with reasonable accommodation, from performing the essential functions of his or her position"; "[a]bsence without leave, or failure to give proper notice of absence"; "[e]xcessive unauthorized tardiness or absence from work"; "[v]iolation of Department work rules or operating procedures"; "[a]ctions or conduct detrimental to the interests of the City"; or "[a]ny other properly substantiated cause which adversely affects the City." Article Seven, Section D, requires that the employee proceed with a grievance for proposed discipline under the ordinance or collective bargaining agreement. Section E.5 describes the hearing conducted under the ordinance, which is the procedure that Respondent elected, and states, at Subsubsection 7, that the Administrative Law Judge is to determine if Petitioner proves by a preponderance of the evidence "just cause" for the discipline. Subsubsection 8 provides that the order is a final order. Subsubsection 9 provides for judicial review. Article Eleven describes attendance and leave. Section A.6.a provides that fulltime employees shall be present at their assigned jobs, "unless absence from duty is authorized by the Department Head as provided herein." Section A.6.c states in part: Excessive unscheduled absences or tardiness shall be grounds for disciplinary action. For purposes of this paragraph, "excessive unscheduled absences or tardiness" shall mean use which is in excess of the average number of hours and/or occurrences of unscheduled leave taken by other City employees in the same or similar positions . . .. Article Seven, Section E.3, defines unscheduled leave as that which the employee requests and the supervisor approves on the day that it is taken. This section states: "An employee's excessive use of unscheduled leave may be grounds for disciplinary action." Section E.1 contains a schedule for the accrual of leave, and the applicable monthly accrual rate, which increases with seniority, applies to the total of each employee's scheduled and unscheduled leave. Department General Order D-1 (General Order), as last revised on December 11, 1995, provides, at Section II, that it applies to [ALL] members of the Department. This section states that the police chief will use progressive discipline, "unless the severity of the offense dictates a more severe action." Section IV prohibits various acts, including feigning illness, avoiding responsibility, or failing to perform one's duties; "excessive use of unscheduled leave"; or engaging in conduct that adversely affects the morale and efficiency of the department. By memorandum dated July 20, 1987, a major in the Department advised all operations division personnel that absences, "regardless of cause," weaken the Department's ability to serve the public though personnel shortages, increase personnel costs due to overtime to cover absences, and increase burdens on other employees. The safety of the public and law enforcement officers requires a minimum staffing of law enforcement officers on each shift. The absence of a scheduled officer requires that the Department pay overtime for an unscheduled officer to report for duty. The record does not demonstrate that unscheduled absences of an officer, up to the total amount of granted leave, compromise the safety of the public or other officers. The contrary inference is precluded in part by the fact that, in the Agreement, Petitioner grants each officer a certain amount of leave and does not further restrict the officer's choice to use his or her granted leave as unscheduled leave. However, the use of unscheduled leave in excess of the granted leave is not anticipated by the Agreement and may compromise the safety of the public and other officers.
The Issue Whether Larry Williams abandoned his position of employment with the Department?
Findings Of Fact Larry Williams worked for the Department for approximately 7 years. During the portion of 1987 that Mr. Williams worked for the Department he was employed as a Supervisor 1. Mr. Williams received a copy of an Employee Handbook upon his employment with the Department. The Employee Handbook informed the Petitioner of the rules governing absences from work, including the Department's rule that an employee will be treated as having abandoned his position if the employee is absent for 3 consecutive workdays without authorized leave. Prior to May 29, 1987, Mr. Williams was assigned to a Bridge Unit of the Department. The Bridge Unit worked out of the Ellis Road yard of the Department located in Jacksonville, Duval County, Florida. Duval County is part of the Department's District Second. By Memorandum dated May 21, 1987, Mr. Williams was informed that he was being reassigned from the Bridge Unit to the Jacksonville Maintenance Unit. He was ordered to report to the Department's sub-maintenance yard at Doctor's Inlet on May 29, 1987. Doctor's Inlet is located in Clay County, Florida. The supervisor of the Doctor's Inlet yard was G. C. Carter. James M. Griffis, a technician at the time at issue in this proceeding also worked at the Doctor's Inlet yard. During the period of time that Mr. Williams was assigned to the Doctor's Inlet yard he occupied a supervisory position between Mr. Carter and Mr. Griffis. Despite this fact, when Mr. Carter was absent from work, Mr. Griffis was placed in charge. This created a problem with Mr. Williams which he discussed with Department employees with supervisory authority over Mr. Carter. Although some efforts were made, the problem was not rectified. On July 30, 1987, Mr. Williams went to the Ellis Road yard and asked to speak with Jesse A. Mann, Mr. Carter's immediate supervisor. Mr. Williams indicated that he was having car troubles and asked if he could work out of the Ellis Road yard that day instead of going to Doctor's Inlet. Mr. Mann informed Mr. Williams that his assigned station was Doctor's Inlet and denied the request. Mr. Williams also asked for permission to drive a Department vehicle to Doctor's Inlet. This request was also denied. Although Department employees had been allowed to use Department vehicles to travel from Ellis Road to other locations, the evidence failed to prove that employees had been allowed to use Department vehicles because their cars had broken down. Mr. Mann told Mr. Williams that he could take a couple of days off in order to get his car repaired. Mr. Mann was authorized to approve leave for Mr. Williams. Mr. Williams told Mr. Mann that he did no have the money to get his car repaired and left without indicating whether he would take time off or not. On Friday, July 31, 1987, Mr. Williams did not report to work. Nor did Mr. Williams notify the Department that he would not be at work that day. On Monday, August 3, 1987, and Tuesday, August 4, 1987, the next working days after July 31, 1987, Mr. Williams did not report to work. Again, Mr. Williams did not notify the Department that he would not be at work. On occasions when Mr. Williams has taken approved leave in the past, his absence has been approved verbally. Only after Mr. Williams has returned from those absences has a written approval form been executed by the Department and Mr. Williams. By letter dated August 5, 1987, the Department notified Mr. Williams that he had been removed from his position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code. By letter dated August 12, 1987, Mr. Williams requested a formal hearing to contest the Department's decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, Larry Williams, has not abandoned his career service position with the Department. DONE and ENTERED this 16th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1988. COPIES FURNISHED: Larry Williams Kaye Henderson, P.E., Secretary 617 West 44th Street Department of Transportation Apartment 191 Haydon Burns Building Jacksonville, Florida 32208 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building Augustus D. Aikens, Jr. 605 Suwannee Street General Counsel Tallahassee, Florida 32399-0450 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner was a lead operator on the first shift of the data entry section of Respondent company. Mr. John Goolsby was also a lead operator but on the second shift in the data entry section. Petitioner was discharged due to elimination of the position of lead operator and Mr. Goolsby was not. During the period encompassing the elimination of Petitioner's job, Respondent reduced its staff from 73 to 57 people and the data entry staff was reduced from 12 to less than 8 people. The decision as to which lead operator in the data entry section would be released from employment was based upon a decision to keep the most productive employee on the basis of quality and quantity of work. Although both the Petitioner and Mr. Goolsby were satisfactory employees, the most productive individual was identified through a series of evaluations by interviewing management personnel to Mr. Christman, Respondent's Executive Vice-President. Probably the most significant- input in the decision-making process was from Sandra Howell, immediate supervisor of both Petitioner and Goolsby, and the tabulations and comparisons of data were done by Walter E. Wilfong, Operations Manager. They all identified John Goolsby as the most productive individual and the decision to release Petitioner was made by Mr. Christman. At the time she was released, the company had no alternative position to offer Petitioner. She has since been offered reemployment in a different position. Petitioner was unable to establish that in making their recommendations to Mr. Christman either of the middle managers gave special or undue consideration to Mr. Goolsby's school schedule. Petitioner never received any written complaints or warnings or reprimands about her work performance and it was unrebutted that her job performance was satisfactory. Petitioner testified that the comparison of production between herself and Mr. Goolsby was invalid because Mr. Goolsby worked the night shift and Petitioner worked the day shift. Witnesses for the Respondent conceded that the night shift was generally not as productive as the day shift. However, the immediate supervisor of both the Petitioner and Mr. Goolsby both before and Mr. Goolsby after Petitioner's termination testified that Mr. Goolsby's work quality and quantity was superior to that of the Petitioner. This testimony was unrebutted. In addition, it was unrebutted that Mr. Goolsby had been nominated for company-wide awards for his quality as an employee on several occasions both before and after the Petitioner's termination and the Petitioner had never been nominated. Although there is some indication in Mr. Wilfong's testimony that Mr. Goolsby had the "edge" with him because Wilfong wanted someone who could communicate with Wilfong for liaison between various shifts, the evidence falls short of establishing this consideration was a deciding factor or that any edge was given Goolsby in the evaluation reports. Further, Wilfong attempted to compensate for Goolsby's showing greater productivity due to the "less people- more work" element of the night shift by reviewing Petitioner's productivity records from then she had previously been on the night shift, which did not compare favorably with Goolsby's for quantity. There is no competent evidence that Respondent terminated Petitioner on the basis of her gender, female, by the ruse of eliminating her position. Further, at the date of formal hearing, Mr. Goolsby's supervisor remained female (Sandra Howell) and there are 6 female/6 male supervisors and a higher female to male ratio of the total 57 retained employees.
Recommendation It is recommended that the Human Relations Commission enter a final order dismissing the Petition/Complaint herein. DONE AND ENTERED this 4th day of November, 1986, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 4th day of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2866 All of the Respondent's Proposed Findings of Fact are accepted. All are adopted, as modified to conform more closely to the record in this cause. COPIES FURNISHED: Ms. Terri Tibble 3040 Aloma Avenue, Apt. J-9 Winter Park, Florida 32791 Thomas R. Pepplar, Esquire Graham, Clark, Pohl & Jones 369 New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32299-1570
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
