The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact 1. Following a May 23, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about July 3, 2003, the matter was referred to the Division of Administrative Hearings and scheduled for a disputed-fact hearing on the merits for August 25, 2003. 2. On July 17, 2003, Respondent served by mail its Motion for a Summary Final Order. 3. On August 12, 2003, Respondent served by mail its Supplemental (Second) Motion for a Summary Final Order. 4. On August 14, 2003, Respondent filed and served its Notice of Filing Supplemental Materials In Support of its (Second) Motion for Summary Final Order. 5. The foregoing pleadings and the exhibits attached thereto, together with the "Determination: No Jurisdiction," which is part of the referral package from the Florida Commission on Human Relations, suggest on their face(s) that the Commission, and derivatively, the Division of Administrative Hearings, is without jurisdiction to determine this case. 6. Petitioner did not timely respond in opposition to the Motion for Summary Final Order as permitted by Rule 28-106.204, Florida Administrative Code, and in a telephonic conference call convened by the undersigned on August 19, 2003, Petitioner represented that she had never received that Motion. Petitioner offered to pick it up at Respondent's attorney's office later on August 19, 2003. 7. Petitioner had received the Supplemental (Second) Motion for Summary Final Order, but from her oral representations in the telephonic conference, it appeared that she did not open the envelope containing it. As of August 19, 2003, Petitioner still had, pursuant to rule, until August 26, 2003, to respond in writing. Also, if Respondent's supplemental materials were to be considered, Petitioner had until August 28, 2003, per rule, to respond. 8. The undersigned is without final order authority in this type of proceeding, and accordingly, the pending Motions have been treated as Motions for a Recommended Order of Dismissal. 9. On August 21, 2003, an Order Canceling Merits Hearing and Permitting Future Filings was entered. That Order provided, in pertinent part: The disputed-fact hearing is now scheduled for August 25, 2003, and all jurisdictional issues could be addressed at the commencement of that hearing, but that hearing is subject to cancellation due to Petitioner's failure to file a unilateral pre-hearing statement. Moreover, it is not cost-effective to require both parties to appear with all their witnesses, prepared for a disputed-fact hearing, when a short delay may obviate the need for such a hearing. If that hearing is cancelled, it will be possible to re-schedule this case for trial within the aspirational time frame established by the legislature, if such re- scheduling is necessary. Accordingly, it is ORDERED: 1. The disputed-fact hearing now scheduled for August 25, 2003, is hereby cancelled. 2. The pending motions will be treated as Motions for Recommended Order of Dismissal. 3. Petitioner is permitted to, and until, September 2, 2003, to file, in writing, any response in opposition to Respondent's Motion for a Summary Final Order, and Respondent's Supplemental (Second) Motion for a Summary Final Order, including the Supplemental Materials Filed August 14, 2003. 4. In her response, Petitioner should address all factual and legal arguments posed by Respondent. She may attach exhibits supporting her position. 5. In the event the undersigned requires any further oral argument or advice from the parties, another telephonic conference call will be scheduled for that purpose, and a formal notice of hearing will be issued. 6. In the event no further oral argument or advice is required, the issues presented in the motions and response will be disposed of, pursuant to Rule 28-106.204, Florida Administrative Code, without hearing; and a disputed-fact hearing on the merits will be re-scheduled only if necessary and appropriate. 10. Petitioner did not file any response to dispute any legal or factual issue raised by Respondent. Petitioner did not file any response attacking the validity of any of Respondent's exhibits. Petitioner did not file any response attacking any portion of the Commission's referral package. Therefore, the filed items may be presumed to be authentic, and the pending Motions may be addressed without an evidentiary hearing. 11. Petitioner filed with the Commission a charge of discrimination against Respondent Employer. That charge was assigned FCHR Case No. 2003342, and was dismissed by the Commission on or about December 6, 2002. 12. On October 18, 2002, Petitioner filed with the Commission a second charge of discrimination, the charge of discrimination underlying the instant case. The Commission assigned the instant charge FCHR Case No. 23-00222. 13. This instant charge of discrimination herein states that Petitioner was notified on October 14, 2001, that she would be terminated by the Employer on October 18, 2001. This charge of discrimination was signed by Petitioner on October 18, 2002. Therefore, it could not have been filed with the Commission before October 18, 2002. The date of October 18, 2002, is more than 365 days after October 14, 2001. See Section 760.11(1), Florida Statutes. 14. By a "Determination: No Jurisdiction" entered May 23, 2003, the Commission's Executive Director found and concluded that all jurisdictional requirements for coverage had not been met, to wit: : The Complainant was notified on October 12, 2001, that she would be terminated effective October 18, 2001, and she received a termination letter on October 14, 2001. Thus the 365-day period for filing a claim with the Commission commenced on October 12, 2001. Complainant, however, filed her complaint on October 18, 2002, which is 370 days from the date she first received notice. 6. The Commission does not have jurisdiction over the complaint because it was filed more than 365 days from the date the Complainant received notice that she would be terminated. 15. While the Director's foregoing findings/conclusions do not bind this forum's de novo proceeding, the Commission's acknowledgement that the instant charge of discrimination was not filed with it until October 18, 2002, constitutes competent evidence of that filing date and is relevant in this proceeding. 16. Attached to Respondent's first Motion for Summary Final Order is a copy of the instant charge of discrimination which shows the Commission's "October 18, 2002," date stamp. Also attached thereto is a Disciplinary Action Report dated October 12, 2001, which shows that Petitioner saw the report but refused to sign it on the same date of October 12, 2001. This report is, in effect, a notice of termination to take effect on October 18, 2001. Another exhibit to this pleading is Petitioner's October 12, 2001, written request to the Employer for a pre-termination hearing. All of these items indicate that Petitioner had notice on October 12, 2001, that she would be terminated, effective October 18, 2001. 17. No one has explained what effect a pre-termination hearing would have had on the planned termination date. No evidence that a pre-termination hearing was ever held has been presented. 18. Petitioner was effectively terminated by Respondent on October 18, 2001. 19. A "Notice of Determination: No Jurisdiction," entered by the Clerk of the Commission on May 23, 2003, provided: The parties are advised that the Complainant may request that a formal, post- investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 35 days of the date of mailing of this Notice and should be in compliance with the provision of Rule 60Y- 5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form in enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the Petition. This action will not become final until time has expired for Complainant to file a Request for Petition for Relief. Failure of Complainant to timely file a petition for relief will result in dismissal of the complaint pursuant to Rule 60Y-5.006, Florida Administrative Code. 20. Accordingly, the last date for filing a Petiton for Relief on the instant charge was June 27, 2003, per Section 760.11(7), Florida Statutes, and 60Y-5.008, Florida Administrative Code. 21. Petitioner FAXED her Petition for Relief to the Commission. Petitioner's FAX cover sheet indicated that, Ms. Razavi, I am faxing this again, since I'm not aware that you have rec'd it yet. I first sent it on Thurs. 26th to a different fax #. The young lady sitting in for Barbar gave me this one. Thanks. 22. On July 1, 2003, the Commission date-stamped receipt of the foregoing cover letter and the Petition for Relief, which it transmitted to the Division of Administrative Hearings on the same date. 23. An Affidavit of Violet D. Crawford, Clerk of the Florida Commission on Human Relations, states that Petitioner's Petition for Relief was received by way of facsimile to the Commission on June 30, 2003, but that it was clocked-in on July 1, 2003.
Conclusions For Petitioner: Michelle Burt, pro se 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 For Respondent: William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
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 this cause for lack of jurisdiction. DONE AND ENTERED this 23rd day of September, 2003, in Tallahassee, Leon County, Florida. Lahn alan 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 23rd day of September, 2003. 12 COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michelle Burt 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
The Issue The issues to be resolved in this proceeding concerns whether the Petitioner should be deemed to have abandoned his career service employment position with the Department of Natural Resources and, therefore, whether the Department of Administration should issue a final order to that effect. The parties presented Proposed Findings of Fact and Conclusions of Law which are dealt with in this Recommended Order and, additionally, are addressed in the Appendix attached hereto and incorporated by reference herein.
Findings Of Fact For approximately two years and ten months the Petitioner, Jack W. Simmons was employed by the Department of Natural Resources at the Maclay Gardens State Park in Tallahassee, Florida. On January 7, 8, 9, 10 and 11, 1985, Simmons was scheduled to work at his position at Maclay Gardens. Simmons did not appear for work on those days and did not seek prior authorization to be absent from work on those days. Simmons did not notify the Department of Natural Resources of his absence or the reasons there for on those days. Jack Simmons had been absent in the past for various reasons including a severe back problem associated with severe back pain. Simmons was largely immobilized during the week of January 7, 1985 and was unable to report to work because of severe back pain. He was unable to stand erect and unable to walk without great difficulty. As established by Joyce Jones, his neighbor, he was able to very slowly and painfully go to the door to let her in his apartment while dressed in a housecoat. He lived on the second floor in an apartment at the top of approximately twenty stairs. He was unable to cook for himself or to dress himself to the extent that he could not put on shoes and rested primarily in a reclining chair. Mr. Simmons at the time in question did not have a telephone and testified that he felt the nearest telephone was approximately three quarters of a mile away. He did not inquire of any of his neighbors as to whether they had a telephone and could report the reason for his absence to his employer, however. His neighbor, Joyce Jones, who assisted in feeding him and caring for him during this week when he was suffering severe back pain, established that she had asked him on January 9th whether he wished her to call his employer to report his absence. He declined her offer, intimating that he would call his employer later himself. Neither Simmons nor anyone else ever called his employer to report his absence or the reasons for his absence. There is no doubt that Mr. Simmons was severely incapacitated on the day in question and required the assistance of Ms. Jones to clean his house, do his laundry, cook for him and purchase medicine for his Lack pain. On one occasion she observed him crawling on the floor in an effort to get back in his reclining chair and on another occasion she observed his inability to get out of the bathtub. There is no dispute concerning the immobilizing nature of Mr. Simmons' illness. Mr. Simmons did not have a telephone and, although his employer previously suggested that he get a telephone, his employer did not require that he do so, merely requiring that he inform them of any absences and the reason therefor. Mr. Simmons maintained that on January 9th, the third day of Mr. Simmons' unreported absence, he was on his way to a telephone to call his employer and report his absence and its reasons when Major Johnston, his employer and supervisor, stopped outside his home and verbally informed him he was fired. That testimony is belied by that of Major Johnston, however, who established that he went to Simmons' house January 11th, a Friday, and not January 9th, a Wednesday. Major Johnston's testimony is accepted over that of Mr. Simmons and Joyce Jones, neither of whom could remember with certainty whether it was January 9th or not when this episode purportedly occurred and because, throughout his testimony, Mr. Simmons candidly admitted he was not able to recall dates and times very well. Major Johnston's version of his whereabouts on January 9th was corroborated by his co-workers, who, together with Johnston, established that Johnston was at a meeting all day with his employers and supervisors on January 9th and only left that meeting during that entire work day to attend a lunch gathering with the same personnel. They immediately returned together from the restaurant to the remainder of the meeting. Indeed, Major Johnston established that he was at a park district manager's meeting all day on both January 9th and 10th, except for the lunch breaks when he lunched in the company of other co-workers who were also in attendance at the meeting, some of whom testified in corroboration of his testimony. Accordingly, Major Johnston's version of the events in question on January 9th and 11th, is accepted over that of Mr. Simmons and Ms. Jones. Major Johnston had intended to go on annual leave from his position on January 11th, but because he was directed by his superior to visit Simmons for the purpose of terminating him from employment, he worked that morning and only took annual leave on that afternoon. His testimony as to his whereabouts on January 9th was corroborated by C. W. Hartsfield, Chief of the Bureau of Park Management, by Joseph Knoll, Assistant Chief, and by James A. Cook, a former deputy director of park operations, all of whom were in Johnston's presence all that day. Joseph Knoll discussed Simmons' unauthorized absence situation with Major Johnston on January 9th and 10th and on January 10th instructed Major Johnston to wait until the next day, Friday, January 11th, and on that day go to Simmons' home to make sure he was not hospitalized before the Department of Natural Resources took any action against Mr. Simmons' employment status. Late on the morning of January 11th, Major Johnston reported to Joseph Knoll that he had visited Mr. Simmons that morning and had notified him of his termination from employment that morning, January 11th. Mr. Simmons was then removed from the payroll and other benefit entitlements effective at 5:00 P.M., January 9th, the third day of the unauthorized absence in question. In the face of the testimony of Major Johnston concerning the termination on January 11th, Mr. Simmons opined only that "I believe it was January the 9th", or words to that effect. His neighbor who cared for him during his illness, Joyce Jones, simply could not remember on what date Simmons told her he had been terminated. Major Johnston had earlier signed and delivered to Simmons a letter warning him that if he had one more unauthorized absence it could result in the loss of his job. During 1984 Mr. Simmons had received a written reprimand for unauthorized absence and tardiness and for similar infractions later in that year had received a three-day suspension from employment. It was at this point that Major Johnston signed and gave him the letter warning him that any more unauthorized absences could result in the loss of his employment. Simmons maintained that he was totally bedridden, without telephone and that he lived at the corner of Park and Franklin Streets in Tallahassee, approximately three-quarters of a mile from the nearest telephone. His own witness, however, his neighbor, Joyce Jones, established that she visited him and he was able to painfully and laboriously come to the door and let her in and tell her of his back problems. On those and succeeding days she cared for and cooked, fetched him medicine and the like and Simmons never asked her to call his employer on his behalf although she offered to call. Simmons had other neighbors, but never asked any of them to call for him to report his absence, either. Although Mr. Simmons was undisputedly gravely ill and unable to walk any distance to use a telephone, there is no doubt that he had an opportunity to report his absence and its reasons to his employer through neighbors, one of whom had even offered to do so, but he had declined that opportunity after being previously warned on two occasions about the importance of reporting his absence to his employer. The Petitioner was given written notice of Respondent's initial determination that he had abandoned his position for in excess of three days and notice of his right to a hearing to contest that determination, as shown by Respondent's Exhibit One, in evidence.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a final Order be entered by the Department of Administration finding that Jack W. Simmons abandoned his position of employment for three consecutive unauthorized days of absence, from January 7th through January 9, 1985, as envisioned by Rule 22A-7.10(2), Florida Administrative Code. DONE and ORDERED this 27th day of December, 1985, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer ~ Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkwav Tallahassee, Florida 323C1 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1985. COPIES FURNISHED: Steven A. Been, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulvard Tallahassee, Florida 32303 Richard L. Kopel, Esq. Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paolo G. Annino, Esq. Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 Kevin Crowley, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32302 APPENDIX - CASE NO. 85-0740 Rulings on Petitioner's Proposed Findings or Fact: The Petitioner's Proposed Findings of Fact are in unnumbered paragraphs and We ruled upon by paragraphs in the sequence they appear in the Petitioner's Proposed Findings of Fact and Conclusions of Law. In large part the Proposed Findings of Fact consist of discussion of testimony and argument of counsel, but to the extent they assert Proposed Findings of Fact they are ruled upon as follows: Accepted.| Accepted in part but rejected inasmuch as this paragraph depicts that the nearest telephone was three-quarters of a mile away, which Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record. Accepted to the extent that it depicts Simmons intent to contact his employer, but rejected insofar as it has already been found that Simmons failed to actually contact his employer. Accepted, but this paragraph of Proposed Findings is subordinate to and unnecessary to the Findings of Fact reached in the Recommended Order on the malarial issues presented and is not dispositive of the material issues of fact raised in this case. Accepted in that there is no dispute as to the severity of Jack Simmons' illness, but this Proposed Finding of Fact concerning the severe nature and immobilizing nature of his illness is subordinate to, and unnecessary to the Findings of Fact reached in the Recommended Order concerning Simmons' failure to take advantage of opportunities to notify his employer of the reasons for his absence and is therefore not dispositive of the material issues of fact presented in this proceeding. This Finding is rejected to the extent that it asserts that Simmons had no opportunity to contact his employer which Proposed Finding does not comport with the competent, substantial, credible evidence of record, although it is true that it is undisputed that Simmons lacked a telephone and his neighbor, Joyce Jones, lacked a telephone. This Proposed Finding of Fact is rejected a., not in accordance with the competent, substantial, credible evidence of record in that it has been found that Simmons did not attempt to contact his employer, although it is true that his neighbor, Joyce Jones, offered to call his employer and at that time. Simmons rejected the offer stating that he intended to call the employer himself. He simply never did so when he had the opportunity. This Proposed Finding is accepted as in accordance with the competent, substantial credible evidence of record, but is subordinate to and immaterial to the Findings of Fact made disposing the material issues presented. The Department of Natural Resources did indeed not require him to obtain a telephone, but its procedure for reporting lateness or absence did envision the use of a telephone and his superiors were aware that he did not have a telephone, however, this Proposed Finding is subordinate to the Finding made to the effect that although Simmons had no telephone he did not avail himself of ample opportunity to use a neighbor's phone in his own apartment building or have Ms. Jones phone his employer for him, which she had offered to do and which he refused. This Finding is rejected as not in accordance with the competent, substantial, credible evidence of record in that the testimony and evidence of record in the above Findings of Fact made in the Recommended Order show that Simmons had the ability to contact his employer and failed to avail himself of it. This Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record. This Proposed Finding of Fact is rejected as not in accordance with the competent, substantial, credible evidence of record to the extent that it indicates that Simmons was fired on January 9th instead of January 11th.I Accepted. Rejected as not in accordance with the competent, substantial, credible evidence of record. Rejected as not in accordance with the competent, substantial, credible evidence of record. This Finding is accepted to the extent that it depicts that Simmons was removed from all employee benefits including payroll effective 5:00 P.M. January 9, 1985, however that is subordinate to and not dispositive of the issue resolved in the Finding of Fact in the Recommended Order which establishes that based upon the competent, substantial, credible testimony and evidence of record, Simmons was indeed terminated by his employer on January 11, 1985, not January 9th. Rejected as not in accordance with the competent, substantial, credible evidence of record. Rejected as not in accordance with the competent, substantial, credible evidence of record. Accepted to the extent that the Notice of Termination indicated that Simmons was on unauthorized leave from January 2nd through January 6, 1985. The Respondent has admitted that is an error, but is an immaterial error since the actual disputed dates in question begin Monday, January 7, 1985. The mere fact that the termination notice contained more depicted dates of unexcused absences than were admittedly the case is an immaterial error and this last Proposed Finding of Fact is subordinate to and immaterial to disposition of the material issues of fact presented. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted. (It should be noted that the Respondent has not numbered all of its Proposed Findings of Fact paragraphs. The Hearing Officer in making 8 specific Rulings on Proposed Findings of Fact of Respondent has numbered those paragraphs 1 through 8 in making these specific Rulings).
Findings Of Fact Respondent was employed by the Brevard County School District on January 15, 1990, as a Secretary III, Classified. She was assigned as secretary to Margaret Lewis, Director of Vocational Education. Classified employees are distinguished from certified employees who are teachers or administrators who hold teaching certificates. Respondent's duties included typing, handling and filing documents and correspondence, keeping budget and payroll records, copying and receiving incoming phone calls to the Department of Vocational Education. For approximately six months, Respondent and her supervisor had a good working relationship. Both were new to the Brevard County School District, and Margaret Lewis felt that together they could make positive changes in the unit. Respondent's personnel evaluation dated March 15, 1990, rates her in the "exceptional high" range in every category, with the highest possible rating being given in the categories, "work attitude," "cooperativeness," "personal appearance" and "tardiness." Something happened in the summer of 1990 around the time that the unit was moving from its office in Rockledge to the new district building in the Brevard County Governmental Center at Viera. The relationship between the two women rapidly deteriorated, a phenomenon observed by co-workers and the assistant superintendents, including Margaret Lewis' supervisor, Daniel Scheuerer. The circumstances were confusing, even to Jerry Copeland, Assistant Superintendent of Personnel Services. None could pinpoint the cause of the rift, although both Ms. Cooper and Ms. Lewis offered their own theories. Ms. Cooper described her supervisor arriving at work one morning crying and upset over some domestic situation. She went into Ms. Lewis' office with her and urged her to go home. Ms. Lewis eventually did leave and was gone for several days. Upon her return, Ms. Cooper felt that Ms. Lewis was very cool toward her and began communicating with her through notes or through messages to other staff. Ms. Lewis believes Ms. Cooper's work attitude changed radically after she was passed over for a secretarial position in the School Board attorney's office. On two occasions, Ms. Cooper approached Abraham Collinsworth, the Superintendent, with concerns she had about Margaret Lewis. Mr. Collinsworth referred the matter back to Dr. Scheuerer, Ms. Lewis' supervisor and the Assistant Superintendent for Instructional Services. Dr. Scheuerer told the superintendent that he had a very disruptive situation with loud conversations and people not feeling good about each other. During the several months period, July through September 1990, Dr. Scheuerer met with the women individually and together. Ms. Cooper complained that Ms. Lewis required her to make too many copies of things, that she communicated with her through yellow stickers, "post-it" notes, and that she, Ms. Lewis, would not tell her where she was going. Dr. Scheuerer counselled Ms. Cooper to adapt to her supervisor's way of doing things and also made suggestions to Ms. Lewis of ways to improve communications, for example, allowing her secretary to keep the calendar. The meeting he had with both women together was very unpleasant. It was obvious that there was a lot of hostility and animosity, tension and stress between the two. Generally, however, Ms. Lewis conducted herself in a professional manner. Ms. Cooper kept a tape recorder that she used to play subliminal tapes. Ms. Lewis felt that she was using the tape recorder to tape their conversations. Ms. Lewis felt that Ms. Cooper spent an inordinate amount of time away from her desk and abused break periods. Ms. Cooper said that she was making deliveries or copying. Ms. Lewis begin writing notes of their confrontations in order to avoid getting emotionally involved. This seemed to inflame Ms. Cooper. Ms. Cooper's reaction to direction was often either a sullen shrug or a verbal retort. Ms. Cooper felt Ms. Lewis gave her conflicting or serial requests. She also kept notes of their interactions. Early on the morning of October 8, 1990, several employees in the area of Ms. Cooper's and Ms. Lewis' office overheard a verbal confrontation between the two. Ms. Cooper had her voice raised and when Ms. Lewis asked her not to talk so loud, she replied she wanted everyone to hear. It was obvious to Daniel Scheuerer, who also overheard part of the confrontation, that Ms. Cooper was the one doing the yelling. On October 9, 1990, Ms. Lewis gave Ms. Cooper the following written reprimand: This is a formal letter of reprimand as a result of your unacceptable behavior on the morning of October 8, 1990. It is being issued as a result of your intentional (you stated that you wanted to be heard by everyone when I asked you to lower your voice) vociferous and disruptive shouting at me in your work area and the disrespect which you displayed toward me as your supervisor after I had made reasonable requests. This type of behavior is unacceptable, disturbing and disruptive to the work effort of the department and the entire area. This is to inform you that any similar outburst of this matter will result in your immediate termination. CC: Personnel File (Petitioner's exhibit No. 5) Sometime around the end of September, or early October, Karen Denbo, the district Equal Employment Opportunity Officer, had a secretarial position open that would have been a lateral transfer (same level, same pay) for Janice Cooper. She applied, and Dr. Scheuerer asked Ms. Denbo to interview Ms. Cooper. Ms. Denbo asked if he was telling her to hire Ms. Cooper. Dr. Scheuerer was given the impression by both Ms. Cooper and Ms. Denbo that they had misgivings about Ms. Cooper performing in a position requiring a lot of technical filings for which there would be no training. Ms. Cooper was not offered the transfer and no other efforts were made to find Ms. Cooper alternative employment. On October 26, 1990, Ms. Lewis gave Janice Cooper a memorandum titled "Job Expectations." It informed her that her supervisor had concerns regarding job performance, relationships with other employees, work attitude and failure to follow administrative directives. It directed her to take specified times for break and it stated she must be accurate, careful, effective and courteous. It stated that her performance was not satisfactory and warned that "failure to make necessary adjustments will result in additional disciplinary action." (Petitioner's exhibit No. 6) On November 1, 1990, near the end of the work week, Ms. Lewis needed some coping done and could not find Janice Cooper. She filled out a copy request form and put Ms. Cooper's name as the contact person. Ms. Cooper returned and Ms. Lewis asked if the form was completed properly. Ms. Cooper looked at it and then replied, "It if says what you want it to say, then its alright." After Ms. Lewis returned to her office, Ms. Cooper followed her in and said if she was going to use her name she needed to get her permission first. As Ms. Lewis began writing down Ms. Cooper's comments, Ms. Cooper reached across the desk, knocking off pencils and paper, and tore the paper out of her hand. Ms. Lewis reached for the phone and asked Dr. Scheuerer to come immediately. Ms. Cooper left and did not return until November 5th, after the weekend. In the meantime, Ms. Lewis met with Dr. Scheuerer; the Assistant Superintendent of Personnel, Jerry Copeland; and the Labor Relations Director, Bob Barrett. Upon Ms. Cooper's return to work, Ms. Lewis called her in to her office. Bob Barrett was also present. She was given this letter: November 5, 1990 Ms. Janice Cooper, Secretary Vocational Education Department Dear Ms. Cooper: This is to inform you that your employment with the School Board of Brevard County is terminated effective immediately, November 5, 1990. The reason for this termination is your unsatisfactory performance. You have been counseled and warned on several occasions regarding the need to improve your performance. On October 26, 1990, you were provided a memorandum which outlined your responsibilities and gave you direction for improving your performance. You were notified that your performance was unsatisfactory and that your failure to make the necessary adjustments would bring additional disciplinary action. Since October 26, 1990, your performance has continued to deteriorate to the point that your unwillingness to make the effort required to function as a Secretary III necessitates this action. Prior to your departure from the work site today, you should turn in any keys or other such School Board material which was issued to you to uses in your job. Sincerely, Margaret Lewis Director, Vocational Education (Respondent's Exhibit No. 2) (emphasis in original) When asked if she had anything to say, Ms. Cooper made no response and refused to acknowledge receipt of the letter. She was directed to collect her personal items and to leave the office. With guidance from the State Department of Education, the Brevard County School District has a policy of discipline of all employees which it calls, "NEAT." The acronym stands for the right to "Notice," followed by "Explanation," followed by "Assistance," within a reasonable "Time." If the deficiencies are not corrected at the end of this process, the employee may be terminated. The School Board's adopted rule 6Gx5-7.05, provides in pertinent part: Suspension/Dismissal. A certificated employee may be suspended or dismissed at any time during the work year pursuant to provisions set forth in Florida Statute 230.33(7)(h), 231.36(4)(6) and the Rules of the Educational Practices Commission. A classified employee may be dismissed for cause. The immediate supervisor shall suspend the employee and notify him/her in writing of the recommendation for dismissal, stating the cause. Termination Date. The effective date of any termination of employment or suspension shall be the last day on which the employee works. (Respondent's Exhibit No. 1) In addition to the above, the School Board's administrative staff acknowledge an employee's right to a pre-termination process that gives her an opportunity to explain why she should not be terminated. The record in this proceeding establishes that Janice Cooper was insubordinate on several occasions. She yelled at her supervisor, disrupting the workplace; she refused to follow instructions or was insolent; and finally, she virtually assaulted her supervisor when she grabbed the paper and tore it up. There is little specific evidence, however, of her poor job performance. Her only evaluation during the ten months of her employment was exceptionally positive. The "Job Expectations" memorandum was provided four days before the incident leading to Ms. Cooper's separation, which incident was plainly insubordination or misconduct, but not "poor job performance." The administrative staff make no apparent distinction between "termination" and "suspension" as both are separations from employment; and they do not view Ms. Lewis' letter, therefore, as a violation of the policy described in paragraph 18 above. Practically, there is no distinction, as no separation is final until the Board takes its action. In the meantime, the employee is no longer on the payroll. In Ms. Cooper's case, the time off of the payroll has been two years, most of which time has been the result of circumstances beyond the control of the School Board. Neither before, nor immediately after her termination by Margaret Lewis, was Janice Cooper offered reasonable opportunity to explain why she should not be terminated. She was given the letter and asked if she had a response. The letter states that termination is a fait accompli. She did not respond, and was told to leave. No evidence was presented as to the need to take immediate action. Both the district and Ms. Cooper could have benefited from a brief cooling off period; the district, by taking the time to draft a letter reflecting the proper cause for its action; and Ms. Cooper, by having an opportunity to reflect on her employment jeopardy and to prepare a response. The district presented evidence sufficient to support a finding of cause to terminate Ms. Cooper. It did not, however, prove that the cause was "poor performance." For that reason, and because the employee was not offered a reasonable opportunity to respond, the termination procedure was fatally flawed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Brevard County enter its final order reinstating Janice Cooper to full back pay and benefits from November 9, 1990, until and including October 7, 1992, and approving her termination effective October 7, 1992. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January 1993. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1993. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in Paragraph 1. Adopted in Paragraph 3. Adopted in Paragraph 4. Adopted in substance in Paragraph 7. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 8. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 11. With the exception of the October 26, 1990 memo, the facts proposed here are rejected as unsupported by the weight of evidence. Poor performance was not proven, nor was it proven that Respondent was taping conversations, rather than playing her own "subliminal tapes." Adopted in substance in Paragraph 14. Adopted in substance in Paragraph 16. Rejected as irrelevant and immaterial. Moreover, there was some mention of a grievance, but no evidence of what this process was or whether it was actually filed and withdrawn. Adopted in Paragraph 17. Rejected as contrary to the weight of evidence, as to unsatisfactory job performance, which is distinguished, according to the School Board's witness, from "insubordination" or misconduct. (Transcript, p. 70-71) Rejected as contrary to the weight of evidence. Respondent's Proposed Findings Adopted in Paragraph 1. Adopted in substance in Paragraph 16. Adopted in Paragraph 18. 4-8. Rejected as argument or conclusions, or summary of testimony rather than discrete findings of fact. Some of those arguments and conclusions have been adopted in the conclusions of law herein. COPIES FURNISHED: Harold T. Bistline, Esquire Building E 1970 Michigan Avenue Cocoa, Florida 32922 F. Michael Driscoll, Esquire Suite 58 3815 North Highway One Cocoa, Florida 32926 Abraham L. Collinsworth, Superintendent Brevard County School Board 2700 St. Johns Street Melbourne, Florida 32940-6699 Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in an Administrative Complaint signed May 1, 1987. The Administrative Complaint alleges that the Respondent has violated Section 489.129(1)(m), Florida Statutes, which authorizes disciplinary action when a contractor is "...guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting." (There is also a factual allegation that the Respondent abandoned a project, but the Respondent is not charged with a violation of Section 489.129(1)(k), Florida Statutes, which authorizes disciplinary action for abandonment of a construction project.) Subsequent to the hearing, the Respondent filed a proposed recommended order containing proposed findings of fact. Specific rulings on those proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order. As of the date of this recommended order, the Petitioner has not filed a proposed recommended order.
Findings Of Fact Based on the parties' stipulations and on the evidence presented at the hearing, I make the following findings of fact. Findings based on stipulations Petitioner is the State agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes. At all times relevant hereto, Respondent was licensed by said Board [Construction Industry Licensing Board] as a registered residential contractor. At all times relevant hereto, Respondent had been issued by said Board, and held, license number(s) RR 0042259. Respondent's address of record is in Apalachicola, Florida. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Ms. Springer and Ms. Ibbotson, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer. The details of the contracted work were generally as follows: Contract entered into on or about: 9-86. Job located in: Eastpoint, Florida. Job generally consisted of: add to Customer's house. Respondent's said contracting business thereafter began said job. Findings based on evidence at hearing Work on the subject project began on or about September 16, 1986. On or about October 24, 1986, Gerald Siprell, the Franklin County Building Inspector, visited the work site and issued an oral stop work order because the building permit issued for the project did not contemplate a new deck. Mr. Siprell advised Respondent that it would be necessary to obtain a plan for the new deck certified by an engineer, since the project site was located in a velocity zone. Only one stop work order was issued on the project. Mr. Siprell first issued the order orally, and it was later reduced to writing. The reason given was "improper permit." The stop work order applied only to the new deck. It did not apply to any of the other work under the contract. Mr. Siprell explained to Ms. Springer that the stop work order applied only to the new deck, and that the other work could proceed. Sometime in early November of 1986, Ms. Springer refused to allow Respondent's workers to proceed with the interior work. Ms. Springer cited Mr. Siprell's stop work order as the basis for her refusal to allow the work to proceed. Respondent's workers returned to the project the following day and Ms. Springer was again told that the stop work order applied only to the new deck. Nevertheless, Ms. Springer again refused to allow the workers to continue the job, so they collected their tools and departed. Less than a week later, Ms. Springer hired Denis Varnes, one of the Respondent's workers, to complete the job. Respondent did not abandon the job. Rather, Ms. Springer, by her actions, prevented Respondent from completing the job. As of the time Ms. Springer stopped Respondent's work on the project, she had advanced the sum of $6,500.00 to the Respondent. The reasonable value of the work performed by Respondent and of the materials left at the job site by Respondent is greater than the $6,500.00 advance. Respondent's conduct under the subject contract did not constitute fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting.
Recommendation For all of the foregoing reasons, it is recommended that the Construction Industry Licensing Board issue a final order in this case dismissing all charges against Respondent. DONE AND ORDERED this 7th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 7th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4397 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: The Petitioner did not file any proposed findings of fact. Findings proposed by Respondent: Paragraph 1: Accepted (including all subparts.) Paragraph 2: Accepted. Paragraph 3: All but last sentence accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as constituting subordinate and unnecessary details. Paragraph 8: Accepted in substance, with some subordinate and unnecessary details omitted. Paragraph 9: Accepted. Paragraphs 10, 11, and 12: Accepted in substance, but most details omitted as subordinate and unnecessary. Paragraph 13: Accepted. COPIES FURNISHED: David L. Swanson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Russell, Esquire Watkins & Russell 41 Commerce Street Apalachicola, Florida 32320 Mr. Fred Seely Executive Director Construction Industry Licensing Board 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation, as alleged in the Stop-Work Order and 3rd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation (Department), is the state agency responsible for enforcing the requirement that employers in the State of Florida secure the payment of workers' compensation for their employees and corporate officers. Respondent, Po’ Boys, Inc. (Po’ Boys), is a Florida corporation engaged in business operations as a restaurant in the State of Florida from January 31, 2010, through January 30, 2013. Respondent employed more than four non-exempt employees during the periods January 31 through February 24, 2010; June 8 through September 3, 2010; and July 11, 2012, through January 30, 2013. Respondent was an "employer" as defined in chapter 440, Florida Statutes, throughout the penalty period. All of the individuals listed on the Penalty Worksheet of the 2nd Amended Order of Penalty Assessment were "employees" (as that term is defined in section 440.02(l5)(a), Florida Statutes) of Respondent during the periods of noncompliance listed on the penalty worksheets. None of the employees listed on the Penalty Worksheet can be classified as independent contractors, as defined in section 440.02, Florida Statutes. Mr. Jonas Hall is a workers’ compensation compliance officer who has worked for Petitioner for about four years. He has been involved with between 200 and 300 cases. On the morning of January 30, 2013, Mr. Hall received a “referral” report that Po’ Boys was not securing the payment of workers’ compensation for its employees. Po’ Boys operates three “traditional” restaurants in Tallahassee, which provide wait-service to their customers. Mr. Hall checked the Florida Department of State’s “Sunbiz” website, which gave him information on Po’ Boys’ legal structure, corporate officers, and principal location. He also checked workers’ compensation information for Po’ Boys, Inc., by accessing the Coverage and Compliance Automated System (CCAS) maintained by the Department. It indicated that Po’ Boys’ last coverage, which had become effective on February 6, 2012, had ended on July 11, 2012. He determined that active workers’ compensation exemptions were on file for four individuals, including Mr. Carmen Calabrese and Mr. Jon Sweede, co-owners of Po’ Boys. Information in the CCAS is submitted by insurance companies and the National Council on Compensation Insurance (NCCI). Mr. Hall drove to the College Avenue location of Po’ Boys to conduct a site visit, but it did not appear open because there were no vehicles present and the lights were off. Mr. Hall proceeded to the West Pensacola Street location. There were vehicles present and he saw an individual who appeared to be arranging chairs on the patio. Mr. Hall introduced himself and explained what he was doing there, and was then referred to Mr. Carmen Calabrese, the manager. It was about 10:00 a.m. Payroll records indicate that employees reported for work between 10:00 and 11:00 and that the restaurant was open to serve lunch and dinner. Mr. Calabrese took Mr. Hall to a “Broken Arm” poster which had a workers’ compensation sticker on the bottom. The sticker contained a workers’ compensation policy number and periods of coverage, as well as contact information for Zenith Insurance Company. Mr. Hall contacted Zenith Insurance Company, and they confirmed that coverage had not been in effect since July 11, 2012. In response to Mr. Hall’s questions, Mr. Calabrese indicated that Po’ Boys had between 50 and 60 employees working at its three locations. Mr. Calabrese told Mr. Hall that he had no knowledge that coverage was not in effect and that Mr. Hall would have to talk to Mr. Sweede, who handled the workers’ compensation for the business. Mr. Calabrese was a credible witness. Mr. Hall called Mr. Sweede, who in turn told Mr. Hall to contact Mr. Wade Shapiro, his insurance agent for providing workers’ compensation coverage. Mr. Sweede then called Mr. Shapiro as soon as he completed his telephone call with Mr. Hall. When Mr. Hall later telephoned Mr. Shapiro, Mr. Shapiro confirmed that Po’ Boys had no policy in effect, but said that he was in the process of obtaining coverage for them. Mr. Hall contacted his supervisor, Ms. Michelle Newcomer, who provided him with a Stop-Work Order Number. Mr. Hall served the Stop-Work Order and Order of Penalty Assessment on Mr. Calabrese, along with a Request for Production of Business Records for Penalty Assessment Calculation, at about 11:15 a.m. Although some records indicated that the Stop-Work Order was served at 10:30, other records and the testimony of the witnesses that it was served at 11:15 were more credible. Mr. Sweede testified that he was unaware until January 30, 2013, that his workers’ compensation coverage was not in effect. He testified that the Electronic Funds Transfer payment “came back” in July, but that he had been unaware of this. He testified, “I must not have found the paperwork, must not have looked at the envelopes, take all the heat for that in this business.” Mr. Sweede testified that he later learned Mr. Shapiro was not only aware that Po’ Boys’ coverage was not in effect, but that he had already been working to get Po’ Boys new coverage before Mr. Sweede telephoned him on January 30, 2013, all without the knowledge or authorization of Mr. Sweede. Mr. Sweede entered into an agreement to obtain workers’ compensation coverage for Po’ Boys sometime on January 30, 2013. Several documents were required, at least one with a notary’s signature. Mr. Sweede signed a letter stating that there had been no workers’ compensation claims since his previous coverage had been canceled on July 11, 2012, joined the Florida United Businesses Association (FUBA), filled out an application for coverage, and made a down payment from the Po’ Boys bank account to the (FUBA sponsored) Florida Citrus, Business, and Industries Fund. Under the terms of the agreement, coverage was made effective retroactively to 12:01 a.m. on January 30, 2013. Mr. Sweede testified that Mr. Shapiro notified him, although he could not remember exactly how, that workers’ compensation coverage was obtained for Po’ Boys at around 11:00 a.m. on January 30, 2013, about 15 minutes before the Stop-Work Order was served. Mr. Sweede’s testimony as to how he came to be satisfied that his coverage at Zenith was actually not in effect, determined how and why it had been canceled, decided to obtain insurance elsewhere, and arranged for people in at least three different locations to prepare and execute all of the required documents in approximately 45 minutes, from about 10:15 a.m. until 11:00 a.m., was unclear. The transcript reflects the following exchange: Q: Okay. So this is another –- this is something else. Obviously when Wade Shapiro came by you brought this check, right, and then he also had you sign these documents? A: I really couldn’t tell you. I couldn’t tell you which way, you know, I mean, obviously, you know, like I said, I was stressed. I got him the check. Whether he ran the check up, brought this stuff back, I probably couldn’t –- I can’t remember which chronology it was. It was, you know, a pretty stressful morning. But I know it was all fast, fortunately. Although it does not contain a jurat or notarial certificate,1/ the application for insurance does contain the signature and stamp of a notary public beneath the signatures of Mr. Sweede and Mr. Shapiro. All signatures on the document are followed by a handwritten notation of “1-30-13” in the space provided for a date. The signature and seal provide credible evidence that the document was signed sometime on January 30, 2013. Regardless of the time when coverage became effective, there is clear and convincing evidence in this case that Petitioner had no information reasonably available to it indicating that Respondent had obtained workers’ compensation coverage in the last minutes before the Stop-Work Order was issued. Respondent concedes it did not have coverage at the time of Mr. Hall’s site inspection, and does not claim that when coverage was obtained, it notified Petitioner, or even attempted to do so. Mr. Hall wrote a “Narrative” in a Department database on the afternoon of January 30, 2013, describing the events of the morning. Although Respondent demonstrated that the description was “modified” several days later on on February 5, 2013, the Department put on no evidence to explain what was modified, or why. The testimony of witnesses that Mr. Hall served the Stop-Work Order at 11:15 a.m. was deemed more credible under all of the circumstances than the notation in the Narrative that it was served at 10:30 a.m. Respondent executed a Payment Agreement Schedule for Periodic Payment of Penalty and was issued an Order of Conditional Release from the Stop-Work Order on February 6, 2013. Po’ Boys failed to secure the payment of workers’ compensation for its employees from January 31 through February 24, 2010; June 8 through September 3, 2010; and July 11, 2012, through January 29, 2013. It obtained coverage sometime on January 30, 2013. Respondent would have paid an amount less than $11,565.68 in premiums for those periods during which it failed to secure the payment of workers’ compensation, because that figure should be reduced by the premium paid for coverage on January 30, 2013. Payroll records submitted by Po’ Boys indicate several employees were paid for varying hours after 11:15 a.m. on January 30, 2013. The parties stipulated that the Department has assigned the appropriate class code and manual rates to Respondent's employees from the NCCI SCOPES Manual.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, Po’ Boys, Inc., violated the requirement in chapter 440, Florida Statutes, that it secure workers' compensation coverage for its employees, and imposing upon it a total penalty assessment of $17,349.70, reduced by the amount attributable to lack of coverage on January 30, 2013. DONE AND ENTERED this 23rd day of May, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 23rd day of May, 2013.
The Issue The issue in this case is whether Petitioner was overpaid in the amount of $809.46; and, if so, whether she should be required to repay that amount to Respondent.
Findings Of Fact At all times material to this matter, Petitioner was a career service employee of Respondent until her separation in October 2018. Petitioner went into labor unexpectedly in December 2017, and as a result, she began maternity leave. Petitioner was not present at work and did not submit a timesheet for the timeframe of December 29, 2017, through July 2, 2018. Petitioner testified that she was unable to submit her timesheets electronically and for this reason, someone else submitted them on her behalf. The evidence presented at hearing did not show who submitted her timesheets. By May 23, 2018, Petitioner had exhausted all of her annual, sick, and donated leave. Once an employee of Respondent no longer has sick leave remaining, annual leave is used to cover any shortages of sick leave. An employee may use donated leave to cover any shortages. Once an employee has exhausted annual, sick, and donated leave, the employee cannot be paid for additional time taken as leave. The additional time during leave is considered “leave without pay” (“LWOP”). Petitioner was placed on LWOP from March 23, 2018, through July 2, 2018, because she had exhausted all of her leave. Although Petitioner was on LWOP during the pay period of May 4, 2018, through May 17, 2018, a pay warrant for 80 hours of work was inadvertently issued on May 25, 2018, for that pay period. Consequently, Petitioner was overpaid $809.46. Petitioner was not responsible for the overpayment. She did not submit her timesheets and, thus, did not falsify them. Petitioner testified that her supervisor verbally advised her that she had received donated leave, but she could not recall the amount. Petitioner also did not offer any written representation from her supervisor or otherwise regarding her leave. The overpayment resulted because Petitioner's timesheet for LWOP for the pay period of May 4, 2018, through May 17, 2018, was not timely approved. Upon discovery of this error, Respondent’s human resources office conducted a manual audit of Petitioner’s leave. Ms. Anderson completed the leave audit and discovered that Petitioner had been overpaid for the May 4, 2018, through May 17, 2018, pay period. On May 30, 2018, the Department sent Petitioner a certified letter requesting the overpaid amount of $809.46. Petitioner became aware of the error when she received the Department’s letter. Petitioner’s pay was transmitted to her bank account electronically via direct deposit. However, she was not monitoring her bank account closely and did not immediately realize that she had been erroneously overpaid. At the time of the final hearing, Petitioner had not paid the overpayment. Petitioner stated she could only pay $40 per month to repay the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final Order requiring Shanace Isaac to repay Respondent $809.46. DONE AND ENTERED this 7th day of March, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2019. COPIES FURNISHED: Shanace Isaac Post Office Box 101 Hastings, Florida 32145 (eServed) Riley Michelle Landy, Esquire Department of Health Bin A-02 5052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Shannon Revels, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 (eServed) Louise Wilhite-St Laurent, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 (eServed)
Findings Of Fact Respondent was employed by Petitioner from December, 1982 to December, 1987 as a tariff clerk, a permanent career service position. On September 23, 1987 Respondent became ill and left work without informing her supervisor, Jill Hurd, or her co-workers. Hurd was available on September 23 and 24, 1987 if Respondent had tried to explain her absence or request leave authorization. Respondent presented Health Status Certificates to Petitioner signed by M. R. Grate, Jr., M.D., dated October 30, November 11 and 18, 1987 which certified her inability to return to work from October 27 through November 30, 1987, during which time she was under his care. On the basis of these certificates, Petitioner authorized her sick leave from October 27 to November 30, 1987. Respondent did return to work on December 2, 1987, but was again absent on consecutive work days of December 3, 4 and 7, 1987. On December 3, 1987, Respondent sent a note to Hurd, via her husband, stating she did not feel well and would not be in to work. On December 4, 1987 her husband again brought Hurd a note stating Respondent would not be in because her baby was ill. Respondent's husband called Hurd on December 7, 1987 to state that she was still ill and would not be in to work. Hurd stated that Respondent needed to get back to work. At no time did Respondent request leave for December 3, 4 and 7, 1987, nor was she approved for leave. She simply informed her supervisor, Hurd, through her husband that she was not coming to work each day. Prior to these unauthorized absences in December, 1987, Respondent had received a memorandum from Hurd on January 14, 1987 setting forth specific instructions for calling in sick following a number of unauthorized absences. Respondent was specifically instructed to call her supervisor, Hurd, each morning by 8:30 a.m. when she wanted to take sick leave. Despite this instruction, Respondent never called Hurd on December 3, 4 and 7, 1987, but simply had her husband deliver notes and messages to Hurd on her behalf. This prevented Hurd from discussing with Respondent the extent of her illness and when she expected to return to work. On November 25, 1987 Respondent had an appointment with Dr. Grate, who signed another Health Status Certificate for the period November 30 to December 11, 1987 indicating she remained under his care and was still unable to return to work. However, despite the fact she did report to work on December 2, 1987 and had been given specific instructions about how to apply for sick leave, she never presented Dr. Grate's Health Status Certificate dated November 25, 1987 to Hurd, or anyone else associated with Petitioner, until the hearing in this case. Therefore, Respondent did not present proper medical certification of illness for December 3, 4 and 7, 1987, and instead simply failed to report to work, or to in any way attempt to personally contact her supervisor. A letter dated December 7, 1987 notifying Respondent of her abandonment of position and of her right to a hearing was sent to Respondent from Petitioner's Executive Director by certified mail, return receipt requested. Respondent's husband signed for this letter on December 9, 1987, and Respondent acknowledges receipt.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter Final Order concluding that Respondent has abandoned her position with Petitioner in the career service due to her failure to report to work, or request leave, for December 3, 4 and 7, 1987. DONE AND ENTERED this 15th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1988. APPENDIX (DOAH Case No. 88-0161) Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Findings of Fact 4, 7. Adopted in Findings of Fact 5, 6, 7. Adopted in Findings of Fact 7, 8. Adopted in Findings of Fact 5, 6. Adopted in Findings of Fact 7, 8, 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact cannot be made since her post-hearing submission shows no indication that a copy was provided to counsel for Petitioner, despite specific instruction at hearing, and the narrative contained in her letter consists of serial unnumbered paragraphs which primarily present argument on the evidence rather than true proposed findings of fact. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William S. Bilenky, Esquire Public Service Commission 212 Fletcher Building Tallahassee, Florida 32399-0850 Harold McLean, Esquire Public Service Commission Office of General Counsel 101 East Gaines Street Tallahassee, Florida 32399 Norma D. Saabir P. O. Box 5802 Tallahassee, Florida 32314-5802 =================================================================
The Issue Whether Respondent should be deemed to have abandoned her employment with Petitioner and resigned from Career Service on March 10, 1989.
Findings Of Fact From March 31, 1987 through March 6, 1989, Nguyet Mackay, Respondent herein, was an employee of the Department of Health and Rehabilitative Services (Petitioner herein). Petitioner's workday commences at 7:30 a.m. At approximately 9:30 a.m., on March 6, 1989, Respondent called Larry Blackburn, a supervisory employee and advised that she was in Ohio and requested leave without pay (LWOP). Blackburn was without authority to approve LWOP and so advised Respondent, but agreed to submit Respondent's request to personnel for consideration. Blackburn expressed skepticism about granting LWOP to Respondent since Respondent, at the time, was on special probation for failing to achieve the required standards in her department. During the conversation with Blackburn on March 6, Respondent advised Blackburn that she was enroute to California to pick up her sister and other relatives and that she would again call the following day, i.e., March 7, to find out if her request for LWOP was granted. Blackburn, in an effort to make sure that in the event Respondent called prior to his arrival at work the following morning, left specific instructions with Marilyn Ford, a unit supervisor, on whether to grant or deny Respondent's request for LWOP. At approximately 8:30 a.m., on March 7, 1989, Respondent phoned to inquire whether her request for LWOP was approved. Ford inquired of Respondent the basis for her request for LWOP and determined that since it was not an emergency, Respondent was advised and placed on unauthorized LWOP and that disciplinary action was being contemplated. Ford further advised Respondent that she was to report to work the following day, March 8, 1989, at her regular reporting time. Respondent was cautioned that in the event that she failed to report to work by the close of business on Friday, March 10, 1989, her employment relationship with Petitioner would be severed for abandonment of position. Respondent advised supervisor Ford that she had flown to California from Ohio to meet with seven members of her family who were flying to California from Malaysia, a sister and brother-in-law and their five children, who had a language barrier and were unable to communicate in English. Respondent understood the directives issued by Ford respecting her unauthorized LWOP and her duty to report to work on March 8. Respondent did not report to work by the close of business on March 10, and her only communication with Petitioner following the March 7, 1989 conversation with Marilyn Ford, was a phone call during the week of March 13 to give her new address and directions for mailing her final paycheck. By letter dated March 13, 1989, Respondent was advised that she was deemed to have resigned from Career Service on March 10, 1989, based on her continuous absence from work without authorization during the period 7:30 a.m., Monday, March 6, 1989 through 4:00 p.m., Friday, March 10, 1989, since such absence without authorized leave for three consecutive work days constituted an abandonment of position. At the time of Respondent's employment on March 31, 1987, she received a copy of Petitioner's employee handbook and loyalty oath and acknowledged her responsibility to review the handbook in detail and request any clarification needed from either her supervisor or the personnel office. (Petitioner's Exhibit 4).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Administration enter a Final Order denying Respondent's petition for review of the facts herein based on the determination that Respondent abandoned her position of employment with Petitioner on March 10, 1989. DONE and ENTERED this 25th of August, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 25th day of August, 1989. COPIES FURNISHED: Shari N. Cortese, Esquire Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida 33702 Nguyet Mackay 6202 South Harold Avenue Tampa, Florida 33601 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1500 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 A. J. McMullian, III Interim Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent should have been suspended from her position with Petitioner as a school bus aide, and whether Respondent should be dismissed from her position.
Findings Of Fact At all times material to this proceeding, Petitioner, The School Board of Dade County (Board), was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida,1 pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Jamella R. King (King), was employed by the Board as a school bus aide from November 1989 until her suspension in July 1997. The position of school bus aide is governed by the Collective Bargaining Agreement between the American Federation of State, County, and Municipal Employees (AFSCME) and the Board. Since 1993, King's employment history has been characterized by excessive unauthorized absences, tardiness, and a continued disregard for administrative directives. In December 1993, King participated in a conference-for- the-record (CFR) because of her excessive unauthorized absences. Respondent was referred to the Employee Assistance Program (EAP), a confidential, collectively bargained for benefit which assists employees who may be having problems that, while not associated with employment, may be interfering with their performance. King refused to attend the scheduled counseling sessions. In February 1994, King participated in another CFR to discuss her attendance problem. The seriousness of the situation was brought to King's attention, and she was directed to improve her attendance. King was again referred to EAP, but failed to avail herself of these services. On or about January 22, 1996, a Transportation Operations Procedures Reminder (Reminder) was given to King. The Reminder set forth the Board's attendance policies and advised King that she currently had four and a half days of unauthorized leave. On April 30, 1996, another Reminder was given to King, addressing her attendance deficiencies. At that time, King had accumulated the equivalent of at least ten days of unauthorized absences in the 1995/1996 school year. From August 28, 1995, to May 28, 1996, King accumulated the equivalent of 21 days of unauthorized absences. On or about June 10, 1996, a CFR was held with King to review her continued disregard of proper attendance practices. King was again referred to EAP and was advised that she must improve her attendance. King was warned that her failure to improve could result in termination of her employment. King refused to follow this directive and continued to accumulate unauthorized absences. In July 1996, King signed in for work, but failed to go to her assigned route. King was issued a letter of warning for failure to complete her assigned route. King's supervisor directed her to improve her attendance. King failed to improve her attendance. As of October 10, 1996, King had accumulated 36 days of unauthorized absences for the preceding 12 month period. On October 29, 1996, a CFR was held with King concerning her attendance problem. At the CFR King received a reasonable directive from her supervisor to improve her attendance. King failed to follow this directive. In January 1997, King was removed from her assigned placement and placed on sub-status by her supervisor because King had become unreliable at her work site due to her continued unauthorized absences. Sub-status refers to a pool of aides who substitute as needed. From January 4, 1996, to February 10, 1997, King accumulated the equivalent of 47.5 days of unauthorized absences. On February 10, 1997, a CFR was held with King regarding her attendance problems. King was again directed to improve her attendance. From March 4, 1996, to April 15, 1997, King had accumulated the equivalent of 44 days of unauthorized absences. On May 27, 1997, a CFR was held with King regarding her continued attendance problem. King's continual unauthorized absences adversely impacted her work site because her coworkers were compelled to perform King's job duties. King's unauthorized absences also adversely affected the quality of transportation being provided to the students who ride the buses to which bus aides are assigned. These students have special needs that require the presence of an aide who can properly attend to those needs. Without a bus aide, there is the potential that the bus driver will be interrupted and distracted by those students. Additionally, when different bus aides appear on the bus, these students may feel uncertain and nervous, which may also unnecessarily distract the bus driver. The Collective Bargaining Agreement between AFSCME and the Board provides: ARTICLE II -- RECOGNITION * * * Section 3. . . .It is understood and agreed that management possesses the sole right, duty, and responsibility for the operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; . . . * * * ARTICLE V --DEFINITIONS * * * Section 27. Unauthorized Absence -- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accumulated sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there are extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. * * * ARTICLE XI -- DISCIPLINARY ACTION Section 4. Types of Separation Dissolution of the employment relation between a permanent unit member and the Board may occur in any of four distinct types of separation. * * * Excessive Absenteeism/Abandonment of Position -- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. . . . Disciplinary -- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. On July 23, 1997, the Board suspended King and initiated action to dismiss her from employment with the Dade County Public Schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining King's suspension without pay and dismissing her from her position with Petitioner as a school bus aide. DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998.
