The Issue The issue for determination is whether excessive absences constitute just cause to terminate Respondent's employment.
Findings Of Fact Petitioner employed Respondent at Skyline Elementary School in Lee County, Florida, from August 25, 1997, until May 22, 2006, when Petitioner suspended Respondent without pay and benefits. Respondent was a member of the food service defined in Subsection 1012.40(1)(a), Florida Statutes (2005), as an educational support employee. Petitioner proposes to terminate Respondent from her employment due to excessive absences during the 2004-2005 and 2005-2006 school years. Petitioner alleges that the absences affected Respondent's ability to carry out the essential functions of her position and that Respondent received two reprimands for excessive absences prior to the proposed termination. The term "excessive absence" is defined in Section 9.015 of the collective bargaining agreement (CBA) between Petitioner and the Support Personnel Association of Lee County1 to mean: three consecutive days of absence without medical verification in a case where abuse is suspected and/or three (3) unauthorized absences in a twelve (12) month period and/or a continued pattern of absence that affects an employee's ability to carry out the essential functions of his/her position. Art. 9, § 9.015, Petitioner's Exhibit 11 (P-11). Many of the material facts are undisputed. Respondent was absent for 47 days during the 2004-2005 school year and 35 days during the 2005-2006 school year. Petitioner does not suspect abuse in connection with any of the absences within the meaning of Article 9, Section 9.015.a. of the CBA. All of the absences were caused by medical conditions identified in the record as diverticulitis and gout. Respondent did not have three consecutive days of absence without medical verification. Whenever requested, Respondent consistently provided a doctor's note for her absence from work. The admitted absences that exceeded Respondent's accrued leave were unauthorized within the meaning of Article 9, Section 9.016. The relevant portion of the CBA defines the term "unauthorized absence" as: Failure of an employee to give notice of absence may be regarded as an unauthorized absence. . . . Absence in excess of accrued sick and personnel leave, when such absence is not specifically authorized in advance. . . . Art. 9, § 9.016, P-11. None of the absences were unauthorized within the meaning of Article 9, Section 9.016a. Respondent consistently provided notice of absence to her employer, frequently before her work shift began at 7:00 a.m., much to the displeasure of her supervisor. Respondent was absent for 28 days in excess of her leave during the 2005-2006 school year. The 28 absences were not authorized in advance, were unauthorized absences within the meaning of Article 9, Sections 9.015b. and 9.016b., and the excessive absences constitute grounds for "appropriate discipline" authorized in Article 9, Sections 9.011 and 9.014. Respondent disputes that any of her absences affected her ability to carry out the essential functions of her position within the meaning of Article 9, Section 9.015c. Respondent also disputes allegations that her absences during the 2004-2005 school year can be considered in this proceeding, that she has any prior discipline, and that termination is "appropriate discipline" within the meaning of Article 9, Sections 9.011 and 9.014. A preponderance of evidence does not support a finding that the 47 absences during the 2004-2005 school year are grounds for termination or that they affected Respondent's ability to carry out the essential functions of her job during that school year. During the 2004-2005 school year, Respondent's school principal recommended on March 24, 2005, that Respondent be rehired for the 2005-2006 school year. The principal signed Respondent's 2004-2005 Performance Assessment scoring Respondent at an "effective level" of performance in all 16 areas targeted for assessment. The Performance Assessment rated Respondent as "punctual in attendance" and "exhibits dependability." The area on the Performance Assessment reflecting "Attendance" and "Total hours absent" is blank. Petitioner employed Respondent for the 2005-2006 school year without conditions and without probation. A preponderance of evidence does not support a finding that the 28 unauthorized absences during the 2005-2006 school year affected Respondent's ability to carry out the essential functions of her position. The principal views Respondent's absences as a "health issue, it was not a work issue." He describes Respondent as a "good worker." The testimony of Petitioner's two witnesses that was intended to provide hearsay testimony of Respondent's peers at work was neither credible nor persuasive. A preponderance of evidence does not support a finding that two prior actions intended by Petitioner to be letters of reprimand evidence prior disciplinary action. Petitioner issued each purported letter of reprimand during the 2005-2006 school year,2 but neither letter included a notice of rights that provided Respondent with a clear point of entry into the administrative process. Article 7, Section 7.09 of the CBA defines the term "discipline" to include a reprimand and provides in relevant part: Employees subject to disciplinary action as specified in Articles 7.091-7.093 shall be entitled to appeal through the grievance process as set forth in Article 5 of the collective bargaining agreement. Article 5 of the CBA describes an extensive grievance process that may culminate in arbitration.3 However, arbitration is not the exclusive procedure of review for proposed discipline. None of the grievance procedures may be construed to deny rights otherwise guaranteed by law.4 Petitioner utilizes the administrative process available at DOAH in connection with challenges to proposed discipline. Neither of the alleged prior reprimands complied with material procedural protections in the CBA. Contrary to Article 7, Section 7.09, Petitioner's Department of Personnel Services never conducted an informal pre-determination conference to review the allegations against Respondent and to afford Respondent an opportunity to respond. Petitioner did not provide Respondent with two days' advance notice to have a representative accompany her to a pre-determination conference where she would have been permitted to present relevant information. The director of personnel did not make a recommendation of disciplinary action to the superintendent. Respondent was sick and not at work on February 21, 2006, and Petitioner never delivered the letter to Respondent. Respondent's supervisor submitted the matter to the executive director of human resources initiating the process for this proposed termination of employment. However, Respondent never had an opportunity to grieve the second "Letter of Reprimand," and Petitioner submits the second "Letter of Reprimand" as evidence of prior discipline that supports the proposed termination of employment. The CBA does not prescribe termination of employment as required discipline for unauthorized absences. The "appropriate discipline" in this proceeding is properly determined by reference to the severity of Respondent's misconduct and any aggravating or mitigating circumstances. Evidence of aggravating circumstances is limited to the excessive frequency of absences. The purported prior "Letters of Reprimand" were issued without a clear point of entry, in violation of relevant procedural protections in the CBA, and the trier of fact does not consider the purported letters of reprimand for the purpose of determining the appropriate discipline. Several mitigating factors are relevant to a determination of "appropriate discipline." Petitioner employed Respondent for nine years. Respondent has been a good worker during that time. The unauthorized absences are attributable to medical conditions rather than misconduct. Respondent has been successfully treated for her medical condition, her present health is good, and there is no evidence that the unauthorized absences will persist after her current suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order suspending Respondent's employment from May 22, 2006, through the date of this Recommended Order. DONE AND ENTERED this 6th day of November, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th of November, 2006.
The Issue Whether Petitioner, Cassondra Davis, suffered an adverse employment action as a result of unlawful discrimination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made. Petitioner, Cassondra Davis, is a female African- American. At all times material, Petitioner was employed by Respondent, Department of Corrections, at Brevard Correctional Institution (Department). Petitioner's last day of actual work at the Department was April 10, 1996. Susan Blais, Personnel Manager at Brevard Correction Institution during the relevant time frame, testified that because of medical problems, Petitioner was unable to return to work after April 10, 1996, until her physician released her to return to work. Petitioner never presented a medical return-to-work release. Instead, she utilized her entitlement to Family Medical Leave Act leave. Once this leave was exhausted, rather than terminate Petitioner, the Department wrote to her physician, Dr. F. F. Matuk, on September 16, 1996, requesting a diagnosis of Davis' condition, as well as an opinion as to whether she could perform the duties of a correctional officer as outlined in a job description enclosed with the request for opinion. (Respondent's Exhibit 1) Dr. Matuk responded to the Department by letter dated September 20, 1996, stating that Petitioner had several work restrictions, including no weight manipulation over 20 to 30 pounds, avoidance of driving over 30 to 40 minutes, avoidance of neck extension, and allowances for extended periods of rest. He did not believe that Petitioner was able to perform the duties of a correctional officer but stated that she would most likely be able to perform a sedentary desk job. (Respondent's Exhibit 2) Susan Blais testified that no such desk jobs were available at that time. Petitioner submitted a letter of resignation to the Department in July 1997, wherein she attributed the resignation to medical reasons. (Respondent's Exhibit 3)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 26th day of March, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cassondra A. Davis 1009 Cannes Drive Poinciana, Florida 34759-3918 Cassondra A. Davis 1216 Pua Lane, No. 107 Honolulu, Hawaii 96817-3821 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Raymond Jennings is a career service employee employed in the custodial department at the University of South Florida Medical Center. During the period between June 1, 1976 and September 30, 1977 Jennings used 91 days sick leave, 21 of which were due to a job related injury. Jennings earns 13 days sick leave per year. He was counselled numerous times by his supervisor for tardiness as well as absenteeism. Due to excessive absences he was placed on special evaluation in January, 1977. By letter dated March 9, 1977 Jennings was advised that his superior feels no improvement was shown and that a second special evaluation would be given in sixty days. (Exhibit 1, p. 23). Performance appraisals during this period reflect continued absenteeism. On September 1, 1977 Jennings was issued a written reprimand for absences on August 26 and 28, 1977. On September 28, 1977 Jennings was again given a written reprimand for habitual tardiness and excessive absenteeism. On September 29, 1977 Jennings was given the five days suspension which is the subject of this appeal. During calendar year 1977 Jennings' attendance record reflects 74 hours of sick leave and pay cuts for an additional 52.5 hours for which he had no earned sick or annual leave. Of the total 126.5 hours, 80 hours of absenteeism occurred on either Friday or Monday. In his defense Respondent contends that many of the days he was absent was because of a sick child who had to be taken to the doctor. He didn't feel his wife was as capable to take the child to the doctor as was he. Jennings further contended that his supervisor, Purvis, made too many inquiries about his sickness when he, Jennings, called in sick, and when he felt bad he didn't want to come to work under Purvis. Jennings contends that just telling Purvis he is sick is adequate to justify his absenteeism. The guidelines for disciplinary action in the Personnel Policies and Procedures Manual for University of South Florida (Exhibit 4) for chronic or excessive absenteeism provides: For first occurrence: oral reprimand For second occurrence: written reprimand For third occurrence: one week suspension For fourth occurrence: dismissal. For the calendar year 1976 Jennings' pay was docked for 32 1/2 days of unauthorized absence and for the year January 1, 1977 to September 30, 1977 he was docked 6 days pay for absences taken in excess of that authorized. (Exhibit 3).
Findings Of Fact Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 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 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 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
The Issue The issue presented is whether Respondent Patrick E. Buday is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent was employed by Petitioner as a Material Handler II assigned to one of Petitioner's warehouses. Under the collective bargaining agreement covering Respondent's employment, unauthorized absences totaling ten or more workdays during the previous twelve-month period constitute evidence of excessive absenteeism. Excessive absenteeism, in turn, constitutes grounds for termination of employment. On April 29, 1997, Respondent's supervisor held a conference-for-the-record with Respondent to address Respondent's excessive absences. At the time of the conference, Respondent had accumulated eight and one-half days of unauthorized absences during the preceding twelve-month period. The conference resulted in a written warning that further disciplinary action, including termination of employment, could occur if Respondent's unauthorized absences totaled ten or more in the previous twelve-month period. In May 1997, after accumulating seven unauthorized absences in the previous twelve-month period, Respondent was again warned in writing that he could be terminated if he accumulated ten or more unauthorized absences. During a two-week pay period in June 1997, Respondent was tardy four of the ten workdays. Respondent received a written warning. In July 1997, Respondent was again warned regarding his excessive absenteeism after he had accumulated eight unauthorized absences in the prior twelve-month period. In October 1998, Respondent accumulated ten and one- half days of unauthorized absences, a number sufficient to warrant his dismissal. Rather than terminating his employment, however, Respondent's supervisor again warned Respondent in writing about his excessive absenteeism. Despite this written warning, Respondent, just six months later, accumulated ten days of unauthorized absences as of April 1999. Respondent was warned that he could be fired for such excessive absences. In an effort to assist Respondent in correcting his deficiencies, Respondent's supervisor referred Respondent to the School Board's Employee Assistance Program. Respondent, however, declined to participate. Nevertheless, Respondent continued to accumulate unauthorized absences. In November 1999, Respondent was warned that he had accumulated nine and one-half days of unauthorized absences. In March 2000, after accumulating ten unauthorized absences during the previous twelve-month period, Respondent was again warned that he could be fired for excessive absences. During the conference-for-the-record to address his unauthorized absences, Respondent gave no explanation as to why he was repeatedly absent without authorization. After the conference, Respondent was referred a second time to the Employee Assistance Program due to his excessive absenteeism. Respondent, however, failed to appear for his scheduled appointment. By June 2000, Respondent had again accumulated ten unauthorized absences during the prior twelve-month period and was warned that he could be terminated from employment on that basis. Thus, in the twenty-month period between October 1998 and June 2000, Respondent accumulated ten or more unauthorized absences during the prior twelve-month period on four separate occasions. On August 31, 2000, Respondent lost his driver's license as a result of driving while intoxicated. Even though he knew he needed a driver's license for his job, Respondent did not tell his supervisor that he no longer had a driver's license. Respondent's supervisor only learned that Respondent had lost his driver's license after a routine records check was performed by the School Board's Office of Professional Standards. Under School Board Rule 6Gx13-4A-1.21, Respondent was under an affirmative duty to report to his site supervisor that he no longer had a driver's license. On February 5, 2001, a Judgment was entered finding Respondent guilty of driving under the influence and revoking Respondent's driver's license for ten years. Respondent signed a copy of the Judgment indicating that he had received a copy and that he understood its contents. That Judgment has not been overturned, amended, or corrected. On March 5, 2001, a conference-for-the-record was held with Respondent by the Office of Professional Standards to address the information regarding Respondent's driver's license which Petitioner had obtained through its routine employee records check. Following the conference, Respondent's supervisors recommended his dismissal from employment for failure to maintain minimum job qualifications. On May 16, the School Board suspended Respondent from his employment and initiated this dismissal proceeding. The minimum qualifications for a School Board employee holding the position of Material Handler II, such as Respondent, include possession of a valid Class D driver's license. The license is required because materials and equipment must be delivered all over the county. Material handlers are routinely assigned to assist the regular drivers with deliveries and are sometimes assigned to different warehouses than those to which they are regularly assigned. Material handlers are called upon to assist with driving duties on the average of three to four times a week, and sometimes daily. The inability of material handlers to drive can impact the School Board's ability to move around employees and materials as needed to fulfill its mission. Respondent knew he was required to have and maintain a valid driver's license to be employed as a material handler. Under the collective bargaining agreement, an employee may be terminated from employment for failing to maintain minimum job qualifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Counts I and II of the Notice of Specific Charges, finding Respondent guilty of the allegations in Count III of the Notice of Specific Charges, ratifying his suspension without pay, and terminating his employment by the Miami-Dade County School Board. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 16th day of November, 2001. COPIES FURNISHED: Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Timothy A. Pease, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Courtney B. Wilson, Esquire Shook, Hardy & Bacon, L.L.P. Miami Center, Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131
The Issue The issues to be resolved in this proceeding, under the relevant provisions of Chapter 760 Florida Statutes, concern whether the Petitioner was discriminatorily discharged because of her race and purported disability.
Findings Of Fact The Respondent, Escambia County Area Transit, Inc., operates a passenger bus service in the area of Escambia County, Florida. The Petitioner was employed as a bus operator since August of 1999. On September 7, 2006, the Petitioner took FMLA leave for a condition involving migraine headaches. That leave extended through October 9, 2006. The Petitioner returned to work from that FMLA leave on January 9, 2007, however. A notice was sent to the Petitioner from Dawn Groders, an administrator with the Respondent, on April 19, 2007, informing the Petitioner that she had exhausted her FMLA leave for the twelve month "rolling calendar year" and that she would not begin accumulating additional FMLA leave until October 9, 2007. The Respondent's policy regarding FMLA leave is as follows: "If a family leave of absence exceeds 12 weeks on a rolling twelve month period, the employment status may be in jeopardy, which could result in termination of employment." There is a labor contract between the Respondent and the Amalgamated Transit Union, Local 1395, the Petitioner's union. That contract contains no provision regarding warning or noticing an employee about obtaining exhaustion of FMLA leave. On October 19, 2007, the Petitioner commenced additional FMLA leave for an injury to her finger. The collective bargaining agreement contains a provision regarding a discretionary leave of thirty days which may be discretionarily granted by the employer. Because the Petitioner had previously exhausted her FMLA leave, based on the rolling twelve month calendar, and had yet to re-acquire any leave, the Petitioner was granted discretionary leave by the Respondent because of having exhausted her FMLA leave. The Petitioner contends that she should have been given alternative light-duty work by the Respondent. On December 3, 2007, however, the Petitioner received a letter from Richard Deibler, the Respondent's Director of Safety Training and Planning, which stated that there was no temporary alternative- duty work available at that time. (Respondent's Exhibit 4, in evidence). The witness for the Respondent established that there was no available part-time or light-duty work at the time the Petitioner was on FMLA leave or attempted to be on FMLA leave. The union contract does not require that part-time, light-duty work be available, with the exception of one individual who was so authorized and who was "grandfathered-in" in that status from a previous union contract. The Petitioner presented no persuasive evidence which would establish that light-duty, part-time work was available at the time in question, in late 2007. Thereafter, the Petitioner remained on re-activated FMLA leave due to her previous injury during the month of December 2007. On December 11, 2007, she received a notice from the Respondent to the effect that she must report for duty by December 27, 2007, because of exhaustion of her FMLA leave and was advised that her employment might be terminated if she were not at work by that date. On December 27, 2007, the Petitioner failed to return to work and her employment was terminated because of exhaustion of her FMLA leave, in accordance with the Respondent's policy. As of the date of her termination, the Petitioner had used a total of 64 days of FMLA leave during the course of the rolling calendar year, dating back to December 27, 2006. The Respondent was aware that the Petitioner had exhausted her FMLA leave based on a rolling calendar year in October 2007, and yet still extended her leave, not just for the referenced thirty days discretionary leave, but for nearly ninety additional days. The Petitioner has asserted no dispute with the number of days the Respondent contends (and the evidence supports) that she was not present at work due to using FMLA leave or other forms of leave, such as discretionary leave. The Petitioner offered no persuasive evidence to show that she was terminated from her employment due to her race or any other reason aside from exhaustion of her FMLA leave and the company's policy with regard thereto. The Respondent's representative and witness established, with her testimony, that the Petitioner was not terminated because of any perceived or actual disability. Although the Respondent knew of the medical reasons the Petitioner stated necessitated her absence, the Respondent was not aware that any physical impairment had resulted in an impairment of any major life activity of the Petitioner. The testimony of Ms. Chizek, is accepted as persuasive in establishing that the Petitioner was not terminated because of any perceived or actual disability or for reasons of her race, but rather was terminated solely because she had exhausted her FMLA leave and in fact the substantial amount of discretionary leave voluntarily granted to her by the Respondent. The Petitioner presented no persuasive evidence that employees or former employees, outside her protected class (African-American) had been treated dissimilarly and more favorably, for the same or similar violations of company policy, to wit, the exhaustion of FMLA leave and subsequent continued failure to return to work. In fact, the persuasive, preponderant evidence shows that the Respondent uniformly applied its policy regarding FMLA exhaustion and subsequent termination of employment. Patty Chizek conducted an audit of all employee files in the fall of 2007 concerning the question of FMLA exhaustion. That audit was not an attempt to single out the Petitioner in any way due to her race or any disability, if one existed. Her investigation revealed that, in fact, a number of employees had exhausted their FMLA leave. They were all terminated during the month of December 2007, similarly to the Petitioner. Thus, Mary Nelson, Nadine Harris, Eurethia Davies, and Linda Donaldson, all of whom are Caucasian women, were terminated during December 2007 because of exhaustion of their FMLA leave. Derrick Roberts, an African-American male, was terminated during that month, for the same reason. All of these employees were terminated for that reason after not being able to return to work for a reasonable period of time after exhaustion of FMLA leave. Moreover, the Petitioner testified that she was first absent from work due to a migraine headache-related medical problem and, on the later occasion, due to injury of her finger, apparently caused by wrestling with the steering wheel of her bus, after it ran on the curb of a street she was traversing. Although it might be recognized, and indeed is undisputed, that these injuries or medical conditions were experienced by the Petitioner, the Petitioner did not establish that they truly impaired her in a major life activity. Even if they were significant, physical reasons for being absent from work for some of the time during which the Petitioner was absent, she did not establish, with persuasive evidence, that they impaired a major life activity and constituted any permanent, or relatively permanent, impairment of her ability to perform the duties of her job. Even if the Petitioner had established that there was a permanent impairment which might constitute a disability, she did not establish that the Respondent had refused a reasonable request for an accommodation therefor. Although the Petitioner requested light-duty employment, the Respondent established with persuasive evidence that, at the time it was requested by the Petitioner, there was no such employment available. Therefore, it was not an accommodation the Respondent could reasonably offer the Petitioner at that time, even if the Petitioner had a known, perceived or recognized disability at that time.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety. DONE AND ENTERED this 10th day of December, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2009. COPIES FURNISHED: John J. Marino, Esquire McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 James N. Foster McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 Tricia Dubose 1349 43rd Ensley Street Birmingham, Alabama 35208 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner was employed by Respondent as a clerical worker, a permanent career service position, at all times material hereto. Prior to October 3, 1988, Petitioner experienced back problems which prevented her attendance at work. Dr. Brian M. Mitteldorf, a chiropractic physician, treated Petitioner beginning September 25, 1988, and continuing through all times material hereto. On October 3, 1988, Theresa (Terry) Bartelmo, Petitioner's supervisor, advised Petitioner in writing that Petitioner would be out of sick leave and annual leave the following day. Mrs. Bartelmo enclosed two copies of the form used to request a leave of absence and advised Petitioner that it was necessary to fill in all blanks and to return the form to her by no later than October 10, 1988. Respondent does not authorize any type of leave for unspecified or unlimited duration. Ms. Bartelmo further advised Petitioner that "... If I do not hear from you by that date, (October 10,1988) then I will assume you wish to terminate your employment with the Department and will process the necessary documentation." On October 3, 1988, Petitioner's husband, Edmund DeSilva, met with Ms. Bartelmo. During the meeting, Ms. Bartelmo gave to Mr. DeSilva the letter she had written to Mrs. DeSilva, together with the forms for the leave of absence. The form for leave of absence was signed by Petitioner on October 3, 1988. Mr. DeSilva hand delivered the form to Ms. Bartelmo prior to the deadline of October 10 set by Ms. Bartelmo. This form was forwarded by Ms. Bartelmo to Martha (Marty) Anderson, Respondent's district personnel manager. Ms. Bartelmo recommended that the leave of absence be granted. Ms. Anderson approved the leave of absence on October 13, 1988. The leave of absence form submitted by Petitioner and approved by Respondent contained a tentative return-to-work date of November 23, 1988. On October 3, 1988, the date Petitioner signed the leave of absence form, it was uncertain when Petitioner would be able to return to work because of her medical condition. On or about October 18, 1988, Ms. Bartelmo telephoned Petitioner to check on her progress. After Petitioner told Ms. Bartelmo that she did not feel well enough to talk, Ms. Bartelmo asked Petitioner to call her when Petitioner felt better. Ms. Bartelmo did not talk with Petitioner again until after Petitioner's employment was terminated. Dr. Mitteldorf called Ms. Bartelmo on November 22, 1988, at approximately 3:30 p.m. Dr. Mitteldorf told Ms. Bartelmo during that telephone conversation that Petitioner was too ill to return to work. Ms. Bartelmo asked Dr. Mitteldorf for a letter stating his opinion as to when Petitioner could return to work. Dr. Mitteldorf's letter was dated December 13, 1988. During their telephone conversation on November 22, 1988, Ms. Bartelmo did not tell or indicate to Dr. Mitteldorf that their conversation was tantamount to an extension of Petitioner's leave of absence. Ms. Bartelmo did not tell Dr. Mitteldorf that she was mailing to him the forms Petitioner needed to submit to request an extension of her leave of absence. Ms. Bartelmo can recommend approval of a request for leave of absence, but she does not have the authority to grant the approval. Ms. Bartelmo did not tell Petitioner or anyone acting on Petitioner's behalf, that Petitioner had any form of authorized leave after November 22, 1988. Other than having Dr. Mitteldorf call Ms. Bartelmo, Petitioner made no effort to have her leave of absence extended. Petitioner's authorized leave of absence ended on November 22, 1988. Petitioner was absent without authorized leave of absence beginning November 23, 1988, and continuing for more than 3 consecutive work days. By certified mailing on December 2, 1988, Petitioner was advised that her career service position was terminated as of December 1, 1988. Petitioner had been given a copy of Respondent's Employee Handbook on December 16, 1986, which provides in part: After an unauthorized absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policies. Petitioner's request for a formal hearing was timely filed.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service due to her unauthorized absence from employment for three consecutive workdays beginning November 23, 1988. DONE and ENTERED this 17th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 17, 18 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 9, 10, 15 and 16 of Petitioner's proposed findings of fact are unsupported by the evidence. COPIES FURNISHED: Larry D. Scott, Esquire Senior Attorney Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Colomba DeSilva 2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Respondent, Theresa L. Beadle, began her employment with petitioner, Department of Health and Rehabilitative Services (HRS), on or about July 1, 1982. She held the position of clerk typist II with an AFDC unit at HRS' Miami district office. Her position was considered a "pivotal" one by HRS personnel because it was Beadle's responsibility to keep and maintain the unit's case records for recipients. Therefore, attendance was an important criterion for her position. Beadle has suffered from coccygodynia (severe pain of the tailbone) and low back pain for at least three years and has been treated for this condition by both a chiropractor and a physician. According to one of her physicians (Dr. Shuflitowski), she should not engage in "heavy lifting (or) long-stretching of the arms." However, Beadle's job duties do not require these activities, and her physician confirmed in a letter to HRS on December 31, 1986 that "there is no justification for her being unable to perform her job as indicated." In addition to her back ailment, Beadle has also suffered from depression principally caused by the recent death of both her mother and her only son in October, 1986 and January, 1987, respectively. She has been treated by a psychiatrist (Dr. Betancourt) for this condition. After a brief absence from work in early October, 1986, caused by her mother's death, Beadle returned to work on or about October 4, 1986. On December 11, 1986 she left work saying her son was seriously ill in Connecticut. She did not formally obtain leave to do so. Around December 29, her daughter visited HRS' office and spoke with the program administrator, James Sanders, and told him that after speaking with her mother by telephone, she did not know when her mother would return to work. On December 30, 1986 Sanders advised Beadle by certified mail that she was "directed to report to (her) official position by 8:30 a.m. on Thursday, January 8, 1987 . . . (or she would be) deemed . . . (to) have abandoned (her) position and to have resigned from the Career Service." On January 4, 1987 Beadle's son passed away, and his funeral was held on January 8. Beadle eventually returned to Miami in mid-January. Although she did not return to work at that time, Beadle telephoned Sanders' supervisor, Barbara Coles, on January 15 and was told by Coles to either contact Sanders or her immediate supervisor, Albert Peart, concerning her situation by January 16. She did not contact either person. On January 20, Beadle's daughter telephoned Sanders to say her mother was unable to come to work. On January 23, Beadle sent Sanders a "disability certificate" from a Dr. Ticktin, a Hialeah orthopedic surgeon, who attested that Beadle had been under his care since January 15 and would be "totally incapacitated" until February 5. However, he also wrote a cover letter stating that Beadle had an appointment on January 15 and could "return to work with no heavy lifting." After receiving the above certificate, Sanders wrote Beadle by certified mail on January 23 advising that she was "directed to report to work immediately and provide an explanation for her absences." Again, Beadle did not directly respond to this letter but had Dr. Betancourt, a Miami Shores psychiatrist, send a letter to HRS on February 5 stating that Beadle was under his professional care and could not return to work until February 20. A disability certificate was later sent by Dr. Betancourt attesting that Beadle was "totally incapacitated from January 15 to February 19" and could not return to work until March 6, 1987. Upon receipt of Dr. Betancourt's correspondence, Sanders sent Dr. Betancourt a letter on February 23 requesting further medical information to verify her medical condition. On February 27, Dr. Betancourt responded and advised that although Beadle was suffering from depression, she could "perform (her) duties without any limitations." He also suggested she be transferred to another position "with fewer environmental stressors." On March 12, Beadle returned to work for a "few days," but left soon afterwards to go to Plant City for an undisclosed purpose. There is no evidence that she requested leave to do so. She never returned to work. On March 30, 1987, Coles contacted Sanders about Beadle's absences, and told him he was in danger of being charged with negligence for not taking any action against Beadle. Up to this time, Sanders had not initiated disciplinary action because, in his words, he wanted to give Beadle a chance to return, was a "softie," and knew that being fired was a "traumatic" experience. However, now fearing for his own situation, Sanders wrote Beadle on April 15 requesting a medical certificate and advising her that unless her supervisor (Peart) received a certificate by April 22, all leave used by Beadle after that date would be "unauthorized." Apparently responding to the above request, Beadle had Dr. Betancourt prepare a certificate stating that Beadle had been under his care from April 2 to April 20, but could return to work on April 20. This certificate was received by HRS on April 17. On April 21, Dr. Betancourt sent Sanders a letter stating that "Beadle would like to request a leave of absence for six months because of her emotional turmoil and recent trauma." During this same period of time, Beadle did not personally contact Peart, Sanders or Coles concerning a leave of absence. Confronted with this maze of disability certificates and conflicting medical advice, HRS decided to have Beadle evaluated by another physician. It accordingly advised her by certified mail dated May 4 that she should contact a Dr. Gilmore and make an appointment for an examination. The letter was not picked up by Beadle and was returned to HRS unclaimed. Two other certified letters sent on May 12 and 14 to Beadle were also unclaimed. Beadle never made an appointment with nor was she examined by Dr. Gilmore. On June 25, Beadle was advised by certified mail that in view of her failure to contact her supervisor since her last day of work on March 31, 1987, or to request leave, she was terminated effective upon receipt of the letter. Beadle received the letter, and thereafter requested a hearing to contest the action. Beadle pointed out that she had experienced a series of problems with her supervisor (Peart) who continually harassed her after her return on October She also stated her job evaluations were always good until she was transferred into Peart's unit, and that in her fragile emotional state caused by her recent tragedies, she could not cope with the job stress generated by Peart's harassment. She also pointed out that a request to Sanders to transfer units was ignored. She conceded that she had signed a statement acknowledging she had read and understood the employee's handbook. This handbook explains the unauthorized absence rule, and the need to obtain authorized leave before being absent from work. She also conceded she had been absent for more than three consecutive workdays since March 31, 1987 without having authorized leave. Beadle wishes to eventually return to work, but not in the same unit, and only after she is psychologically able to cope with job stress.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Theresa L. Beadle abandoned her job with petitioner. DONE AND ORDERED this 9th day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of November, 1987.
Findings Of Fact Petitioner was first employed by the. Florida State Hospital at Chattahoochee, Florida in 1968 and since March, 1971 has been evaluated by his supervisors as conditional or unsatisfactory in dependability. These low marks in dependability stem directly from his absenteeism rather than from his calibre of work when on duty. Petitioner is employed as a psychiatric aide. On October 31, 1972 Petitioner received his first written reprimand for excessive absenteeism. On March 22, 1973 a second written reprimand was received by Petitioner for excessive absenteeism. From August 1974 to May 1975 Petitioner was granted leave of absence to attend a vocational school. Upon his return to work at the hospital he was assigned to the 3:00 P.M. to 11:30 P.M. shift. In August 1975 Petitioner was assigned to night duty at his own request and over the objection of the night duty supervisor whose objections were based solely on Petitioner's prior record of absenteeism. Between the months of September 1975 to August 1976 Petitioner was absent a total of 64 1/2 days of the days he was required to be on duty. On July 13, 1976 Petitioner was given a third written reprimand for excessive absenteeism. On each of the occasions Petitioner was absent he would call in one or two hours prior to the time he was scheduled to report for duty to advise that he or a member of his family was sick. At this time of night it was often impossible for the hospital to get a replacement for him, and, as a result, the ward was short of attendants. Following the July 13, 1976 written reprimand Petitioner called in sick on July 25, July 31, and August 1, 1976. In approximately 95 percent of the cases Petitioner's absences occurred the day prior or subsequent to his scheduled off-duty days. During the six months period prior to his suspension from duty for three days without pay the ward to which Petitioner was assigned was a surgical ward where most patients required more intensive care than on non-surgical wards. While on duty Petitioner is an effective and capable employee and his efficiency reports so indicate. HRS Employee Handbook (Exhibit 1) provides penalties for various offenses. For the first offense of excessive absenteeism oral to written reprimand is recommended. For a second such offense penalty of written reprimand to three days suspension is recommended. For a third such offense three days suspension to dismissal is recommended. For a fourth such offense dismissal is recommended. Testifying in his own behalf Petitioner acknowledged excessive absenteeism and gave as a reason that he was subject to headaches, and, that when he didn't feel good he would stay home rather than come to work and have to listen to the complaints of his fellow workers. During the past year Petitioner has been employed by Gadsden County School Board as a bus driver. While so employed he missed only one day due to sickness.
Findings Of Fact Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987. RECOMMENDED this 18th day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1-2. Accepted and incorporated in Findings of Fact 1. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact. Rejected as contrary to the weight of the evidence. Accepted. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation. 9-12. Irrelevant. 13-17. Rejected as not Finding of Fact. By the Respondent Accepted. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted. 10-13. Irrelevant. Rejected as not a Finding of Fact. Accepted. COPIES FURNISHED: Isidro Garcia, Esquire Florida Rural Legal Services, Inc. 572 S.W. 2nd Street Belle Glade, Florida 33430 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
