Findings Of Fact On February 4, 1991 the Petitioner met with Peter Bond the Department's Regional Toll Manager for the Tampa Bay Region and Delene Wilson the Department's Toll Facility Supervisor at the Sunshine Skyway Bridge concerning a transfer to the Tampa Bay Region from her then present position as a Toll Collector in Miramar, Florida. As a result of these meetings with Bond and Wilson, Petitioner was offered a position as Toll Collector on the Sunshine Skyway Bridge. The Petitioner preferred the first shift in order to be available to see about her children when they got out of the day care center. Wilson advised the Petitioner that there may be a first shift opening but that unless that worked out there was only a second shift available. Petitioner understood this when she accepted the position and started the process of transferring. As it turned out, the first shift did not become available and Petitioner was placed on the second shift. Additionally, Wilson was able to transfer another Toll Collector from the north end of the bridge to the south end of the bridge so that Petitioner could work the north end which was closer to her home. With everyone thinking that Petitioner's transfer would be effectuated by February 15, 1991, the Petitioner was placed on the work scheduled for February 15, 1991 through February 28, 1991. As it turned out, Petitioner's last day at Miramar was February 26, 1991. As a result, Petitioner was placed on a new work schedule of March 1, 1991 through March 14, 1991. However, because Petitioner had just moved and needed to get things straightened out, Wilson placed Petitioner on authorized leave without pay (Petitioner had no leave time accumulated) for March 1-2, 1991. Petitioner's regular days off would have been March 3-4, 1991 which required her to report for work on March 5, 1991. The Petitioner did not report for work on March 5, 1991 or at any time during the two week work schedule of March 1 through March 14, 1991. Wilson covered the Petitioner's shift on a day to day basis which did cause the other employees some hardship. From March 7, 1991 Wilson called Petitioner on a daily basis but was unable to reach anyone until March 12, 1991 when she talked to Petitioner's husband, Brian and ask that he have Petitioner call Wilson as Wilson needed her to work. Petitioner did not return this call notwithstanding that her husband gave her that message on March 12, 1991. On March 14, 1991, while Bond was in Wilson's office, Wilson called Petitioner and Petitioner answered the phone. When asked why she had not reported to work the Petitioner explained that she was attending school to better herself and that she could not work the second shift because she had no one to take care of her children after they got out of the day care center. During this telephone conversation on March 14, 1991 Petitioner requested a six month leave of absence without pay, Petitioner was advised by Bond, through Wilson, that Petitioner could file for a leave of absence without pay but she must report for work that day or otherwise she would be considered as having abandoned her position and resigned from career service which would result in her termination. Petitioner did not report for work that day, March 14, 1991 and even though she was on work schedule through March 28, 1991 did not report for work any day thereafter through March 28, 1991 when she was advised by Bond of her termination by letter referred to in Finding of Fact 2 above. Petitioner understood that her transfer would not cause a break in service and that any time off had to be on her regular days off or by authorized leave of absence. Petitioner also understood that since she had no accumulated annual leave any leave time would have to be sick leave or authorized leave of absence without pay. Except for March 3-4, 1991, Petitioner neither applied for, nor was granted, any sick leave or unauthorized leave of absence without pay between March 1, 1991 and March 28, 1991. Between March 1, 1991 and March 28, 1991 the Petitioner was attending school and working on jobs other than with the Department that allowed her to work the first shift. There is sufficient competent substantial evidence to establish that Petitioner intended to abandon her position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Department of Administration enter a Final Order (1) finding that Petitioner did abandon her position with the Department and resigned from career service, and (2) denying the Petitioner any relief. DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Petitioner did not submit any proposed findings of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. As to the receipt of letter it is adopted in Finding of Fact 3. As to reading the letter the date was sometime around April 6, 1991 and in that regard proposed finding of fact 2 is rejected. See Finding of Fact 4. Not material or relevant since the date letter is postmarked controls and that was earlier than May 30, 1991. Covered in Preliminary Statement. - 7. Not material or relevant. Adopted in substance as modified in Finding of Fact 8. - 14. Adopted in substance as modified in Findings of Fact 9, 7, 7, 9, 10, and 9, respectively. Not material or relevant since Wilson had placed Petitioner on authorized leave of absence without pay on March 1-2, 1991. See Finding of Fact 10. - 17. Adopted in substance as modified in Findings of Fact 11 and 12, respectively. Not material or relevant. The first phrase of proposed finding of fact 19 is adopted in substance as modified in Finding of Fact 12. The second phrase of proposed finding of fact 19 is not supported by the record but see Finding of Fact 12. While the record reflects that Petitioner may have been pregnant, the record does not reflect that her pregnancy would have prevented her from returning to work. - 23. Adopted in substance as modified in Findings of Fact 13, 16 and 12, respectively. Not supported by substantial competent evidence in the record. Adopted in substance as modified in Finding of Fact 13. Goes to credibility and not a finding of fact. 27.-28. Adopted in substance as modified in Finding of Fact 14. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Angelita K. Coley Davis 5919 S. Dale Mabry Apt. A Tampa, FL 33611 Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458
The Issue Whether Petitioner is entitled to in line of duty disability retirement as defined in Section 121.021(13), Florida Statutes. Whether the Petitioner's retirement date should be established immediately following her termination of service as a full time employee of the State of Florida. The parties had no motions or other preliminary matters to be considered prior to the presentation of evidence. Both parties stipulated that the Petitioner is entitled to disability retirement benefits as a result of total and permanent disability within the meaning of Section 121.091(4)(b), Florida Statutes. The Respondent introduced into evidence Respondent's Exhibits 1 - 4 which consisted of medical reports and other documents filed by the Petitioner pursuant to her application for retirement which are a part of her official records in the Division of Retirement. The exhibits also include copies of correspondence concerning her application with the Division of Retirement. Exhibit 24, a medical report of Dr. Jaime M. Benavides, dated August 26, 1975, was placed in the record for the first time by the Petitioner at the hearing. Neither of the parties objected to the admission of Exhibits 1 - 24. Counsel for Petitioner and Respondent made opening statements, and closing arguments. The Petitioner presented the testimony of four witnesses, including herself, at the hearing. Respondent had no witnesses. The parties stipulated that: Petitioner became an employee of Monroe County in March, 1956 and remained in that status until 1962 and also from 1963 until October 1, 1971 when she commenced employment for the State of Florida. She transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System on December 1, 1970. She remained a member of the Florida Retirement System until her termination of employment on September 28, 1973, at which time she had 16.5 years creditable service under the Florida Retirement System.
Findings Of Fact Petitioner was born April 20, 1916. She began work for Monroe County in March of 1956 as a Counselor for the County Juvenile Court. Her area of responsibility was from ten miles north of Marathon, Florida, to the Dade County line encompassing the upper Florida Keys. She traveled constantly in performance of her duties which consisted of handling juvenile probationers, child abuse cases, dependency cases, and the like. In the course of her employment, she traveled constantly over an area of approximately 70 miles in length making visits to homes, talking to parents and the troubled children, evaluating them and reporting back to the Court as to whether or not they were complying with the terms of their probation. In 1962, her husband was transferred to the lower Keys and, for a brief period, she had to wait for a job opening in Key West. In 1963, she again was employed by the Juvenile Court in the same capacity that she had held previously. During this period of time, she additionally had to handle court cases and prepare various reports to be furnished to State agencies. She had no secretary to assist her in these matters and consequently was quite busy with field work and administrative duties. At this time, she was living in Big Pine Key which is approximately 37 miles north of Key West, and her territory was from South of Marathon to Key West, a distance of approximately 31 miles. In the course of her employment, she traveled an average of about 100 miles a day. In 1970, she was also obliged to work from Key West to the Dade County line for a period of a year because the Juvenile Court Judge had discharged the counselor who had had that additional area of responsibility. During this period, Petitioner was responsible for all of the delinquencies and dependent female children for the entire area and, although her hours of employment were supposed to be 40 hours a week, it turned out that she was on call 24 hours a day as a practical matter. She was frequently called at home at dinner time or in the middle of the night to pick up an abused child. She would normally receive several calls a night dealing with her duties. In October, 1971, she began employment with the State of Florida, Division of Youth Services, Bureau of Field Services, as a Youth Counselor II, performing essentially the same duties as she had previously performed for the County. On March 30, 1972, while in the office doing a report, her mind went blank and she was unable to function or remember anything. She felt like her whole body had fallen apart. A doctor was called and she was hospitalized for about 10 days at which time she was released on the condition that she remove herself from her current environment. She thereupon went to Virginia and stayed approximately six weeks with her son and then continued a five month leave of absence from her employment. She had been under the care of Dr. H. T. Rowland since February 17, 1971 suffering from headaches, dizziness, anxiety, and depression which had increased severely over the years. Her hospitalization in March of 1972 was for a severe depressed anxiety reaction and her history at that time revealed extreme fatigue and inability to execute the usual task performance required in her work. She also sought the assistance of a psychiatrist in Miami, Dr. Walter White. (Respondent's Exhibits 1,13a) After this nervous breakdown, her supervisors asked her to come back to work and indicated that if she did, her area of responsibility would be reduced. Inasmuch as she felt able to come back after her leave of absence, she returned to her former employment in August of 1972. At this time, her area was reduced by eliminating the Key West area and limiting her territory to a 40 mile radius. She had an office at Marathon with a secretary to assist her. Although she had less probations to handle than she had previously, there was more written work to perform and she was still constantly on the road making home visits to parents and children. The driving which she was obliged to perform including driving to and from work, resulted in her having headaches of a severe nature. A typical aspect of her work was to receive a complaint concerning an abused or delinquent child from a neighbor or the Sheriff's office, at which time she would call on the parents and the child to determine what disposition should be made. As a result of her interview, she would fill out various forms and forward them with her recommendations to the State Attorney in Key West. If the child were processed in the court and put on probation, she would then become the probation officer. It was difficult for her to then gain the child's confidence because she was the one who had originally processed the youth through the court system. She had approximately 35 children on probation at all times. Her workload and responsibilities were the same as those which were performed by three state employees in the Key West area. Her job was quite frustrating in that she had to act more or less as a substitute parent on many occasions to see that the children were in school or had a job, to transport them to mental health facilities, to counsel parents, to try and bring about reconciliations between parents and their children, and find homes for those girls who had been ejected from their homes by their parents. Since the State's policy was to minimize detention, Petitioner was obliged to try and find private citizens who would take, them in. At times she spent her own money on food and clothing for these wayward or abused girls. On September 28, 1973, Petitioner suffered a second nervous breakdown from which she lost approximately fifteen pounds and became unable to work thereafter. She was medically examined on August 23, 1973, complaining of a feeling of fullness and stuffiness in the ears together with some discomfort in swallowing. Examination by the physician at that time led to his conclusion that her symptoms were those of stress and not due to physical disease. (Respondent's Exhibit 3) On September 18, 1973, Petitioner had shown symptoms of depression which were most likely due to her occupation. (Respondent's Exhibit 2) She had also been seen by an Orthopedic Surgeon in Key West on July 30th, 1973, complaining of headaches, loss of balance and diminished hearing and eyesight. She was seen again by him on September 10th complaining of continuing neck pain aggravated by flexion and extension and that she had become progressively more nervous, depressed and had loss of appetite and difficulty in swallowing. The physician stated his opinion that the stresses of her work were more than she could handle and it was believed that she should retire. (Respondent's Exhibit 4) On October 18, 1973, Petitioner applied to the Division of Retirement for disability retirement. (Respondent's Exhibit 7) Her application was accompanied by a Statement of Disability in which she attributed her incapacitation for further service to the mental stress caused by her employment and wherein she asserted that she was unable to cope with her job problems anymore. In this form, she stated that her disability was in line of duty. (Respondent's Exhibit 8) Her application was accompanied by statement of two physicians. Dr. Miguel Eisen of Key West diagnosed her condition as occupational depression of continuing nature and stated that her treatment was retirement from her present occupation and that she should refrain from driving to and from work. (Respondent's Exhibit 5) Dr. H.T. Rowland of Marathon diagnosed her condition as anxiety and depression with treatment of psychotrophic drugs and prognosis poor. (Respondent's Exhibit 6) In a statement accompanying his report, Dr. Rowland found that, in addition to her subjective emotional problems, Petitioner had severe hypertrophic degeneration of the cervical vertebrae which he believed to be greatly aggravated by her work. She also had a metabolic condition requiring thyroid medication. In his opinion, she was physically and emotionally unable to perform her job of counseling delinquent juveniles. (Respondent's Exhibit 1). On November 21, 1973, the Director of the Division of Retirement disapproved her application for disability retirement with the comments "apparently unable to handle her present job but records do not indicate that she cannot perform satisfactorily in another position." (Respondent's Exhibit 9) She was informed of this decision by letter of the Division, dated December 4, 1973. (Respondent's Exhibit 10) On December 11, 1973, Petitioner was examined by Dr. M.L. Escoto, a Psychiatrist in Key West Florida. In a report which he rendered to Dr. Rowland, dated December 20, 1973, he stated as his impression that Petitioner was suffering from an acute anxiety neurosis with depression. He stated that the precipitating factor had been the tremendous amount of pressure she had had in the past because of her work and while her sons were in Vietnam. He concluded that she was unfit for continuation of her work and that there was enough basis to grant her benefits of retirement under medical disability. He further stated that return to work would undoubtedly result in an exacerbation of emotional conflicts and/or psychiatric hospitalization. (Respondent's Exhibit 11A, Ex.12) In a report to Petitioner's attorney, dated April 22, 1974, Dr. Rowland clarified his prior opinion to state that Petitioner is incapacitated permanently, that the disability was sustained in the line of duty and that he did not believe the patient would ever be able to work effectively in any capacity. (Respondent's Exhibit 14) On May 20, 1974, Dr. Benavides supplemented his October 8, 1973, report with a letter to Petitioner's attorney, stating that he did not feel that she was able to work and therefore could be considered totally and permanently disabled from rendering useful and efficient services as an officer or an employee. (Respondent's Exhibit 15) By letter of June 5, 1975, Petitioner was advised by the Division of Retirement that although her application and supporting documents did not establish line of duty disability retirement, it did establish regular disability retirement as described in Section 121.091(4)(b), Florida Statutes. This letter indicated that Petitioner had been notified that she had been approved for regular disability retirement benefits on February 14, 1975. (Respondent's Exhibit 20)(However, this letter of notification was not offered into evidence.) Petitioner was advised that her retirement date was established as February 1, 1975, according to Section 121.091(4)(a), Florida Statutes, because the Division did not receive "medical documentation which indicated your total and permanent disability until January of 1975." A physician's report of disability, dated August 26, 1975, from Dr. Benavides was presented at the hearing which diagnosed petitioner's condition as headaches, loss of balance, hearing and eyesight, aggravated by certain motions and by driving a car and sitting at a desk doing paper work; neck pain, nervousness, depression, loss of appetite and difficulty in swallowing. His prognosis in this report was that the stresses of the Petitioner's work were more than she could handle; that she is not able to work and therefore would be considered totally and permanently disabled in line of duty. (Respondent's Exhibit 24) Petitioner had two sons serving in the armed forces in Vietnam, one from January, 1970 to March 1971, and one from June 10, 1971, to March 23, 1972. Neither of their assignments involved direct combat duty and Petitioner stated that she was not unduly concerned as to their safety. Petitioner's secretary and a friend both testified that they had seen her problems mounting over the years and that she had progressively become very nervous. Petitioner has not been employed since, September 28, 1973.
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether the Petitioner has forfeited her rights and benefits under the Florida Retirement System (FRS).
Findings Of Fact The FRS is a public retirement system as defined by Florida law. The Respondent is the Florida agency responsible for management and operation of the FRS. At all times material to this case, the Petitioner was employed as a teacher by the Brevard County School Board (BCSB). The BCSB is an FRS-participating employer. Because of her employment, the Petitioner was enrolled in the FRS. On or about June 25, 2008, the Petitioner was arrested and charged with the following offenses: Twenty counts of unlawful sexual activity with a minor, a second degree felony, in violation of Section 794.05(1), Florida Statutes; One count of lewd or lascivious conduct, a second degree felony, in violation of Section 800.04(6)(a)1., Florida Statutes; One count of lewd or lascivious exhibition, a second degree felony, in violation of Section 800.04(7)(a), Florida Statutes; One count of lewd or lascivious molestation, a second degree felony, in violation of Section 800.04(5)(c), Florida Statutes; One count of lewd or lascivious battery, a second degree felony, in violation of Section 800.04(4)(a), Florida Statutes; and One count of delivery of cannabis to a minor, a second degree felony, in violation of Section 893.13(4)(a)-(d), Florida Statutes. The victim of the alleged crimes was a male who had been temporarily incarcerated at the Brevard Regional Juvenile Detention Center (Center). As an employee of the BCSB, the Petitioner taught science, English, and health education to detainees incarcerated at the Center. The victim was a student in the Petitioner's classroom during his incarceration at the Center. The Petitioner engaged in sexual activity with the victim between May 16, 2008, and June 19, 2008, after the victim had been discharged from the Center. The evidence fails to establish the manner in which the Petitioner and the victim made initial contact after his discharge from the Center. There is no evidence that the Petitioner was coerced or required to engage in sexual activity with the victim. On at least one occasion, the sexual activity occurred in the Petitioner's home. On July 7, 2008, the BCSB commenced proceedings to terminate the Petitioner's employment as a teacher. On July 14, 2008, the Petitioner resigned from her employment with the BCSB. In February 2010, the Petitioner executed an agreement to plead guilty to three counts of unlawful sexual activity with a minor, a second degree felony, in violation of section 794.05(1), Florida Statutes, and one count of making a false report to law enforcement officers, a first degree misdemeanor, in violation of section 837.05(1), Florida Statutes. On February 7, 2011, the Petitioner's plea agreement was filed in court, and the Petitioner was adjudicated guilty. The BCSB thereafter referred the matter to the Florida Department of Education, Office of Professional Practices. As a teacher, the Petitioner was subject to jurisdiction of the Education Practices Commission, pursuant to section 1012.795, Florida Statutes, and was required to comply with the Code of Ethics for the Education Profession in Florida (Code of Ethics) and with the Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct). The Petitioner was an authority figure to her students at the Center. According to the Principles of Professional Conduct, she had an obligation to protect students from conditions harmful to learning and harmful to their health and safety and an obligation to refrain from exploiting a relationship with a student for personal gain or advantage. On May 11, 2011, the Florida commissioner of education filed an Administrative Complaint before the Education Practices Commission alleging that the Petitioner had violated provisions of the Code of Ethics and the Principles of Professional Conduct and seeking to impose a disciplinary penalty against the Petitioner's educator's certificate. On December 14, 2011, the Petitioner surrendered her educator's certificate for permanent revocation. On January 5, 2012, the Education Practices Commission issued a Final Order permanently revoking the Petitioner's educator's certificate. When the Petitioner was charged with the crimes referenced herein, the Respondent suspended the Petitioner's FRS rights and benefits and provided proper notice of the suspension to the Petitioner. After the Petitioner was adjudicated guilty, the Respondent notified Petitioner that her FRS rights and benefits had been forfeited as a result of the plea. The Petitioner timely requested an administrative hearing to challenge the suspension and forfeiture. The Petitioner has not retired from the FRS and is not receiving FRS retirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that the Petitioner was convicted of a specified offense pursuant to section 112.3173 and directing the forfeiture of her FRS rights and benefits. DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of December, 2012. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Charles L. Handlin, Esquire Handlin and Hefferan, P.A. 12 North Summerlin Avenue Orlando, Florida 32801 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue The issue is whether Petitioner has forfeited her rights and benefits under the Florida Retirement System (“FRS”) pursuant to section 112.3173, Florida Statutes (2017).1/
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the stipulation of the parties in the Joint Response to Pre-hearing Order, the following Findings of Fact are made: The FRS is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with managing, governing, and administering the FRS on behalf of the Florida Department of Management Services. For over 21 years, Ms. Painter was the head softball coach for Gulf Coast, an FRS-participating employer. By virtue of her employment, Ms. Painter was enrolled in the FRS. On May 5, 2014, the Bay County Sheriff’s Office commenced an investigation into allegations that Ms. Painter had misappropriated cash that had been provided to her to pay for players’ meals during a softball tournament in Las Vegas and that Ms. Painter was collecting and keeping rent money from softball players who were on full room-and-board scholarships and had their rent paid by the college. In the summer of 2014, Ms. Painter was charged by information with one count of grand theft, a third-degree felony. Gulf Coast did not terminate Ms. Painter’s employment. Gulf Coast allowed Ms. Painter’s employment contract to expire on June 20, 2014. On January 9, 2015, the information was amended to include seven counts of grand theft, each constituting a third degree felony under section 812.014(1) and (2)(c), Florida Statutes (2014). Though some counts dealt with other allegations, for the purposes of this proceeding, the essential charges involved the meal money and the rental payments. Ms. Painter ultimately entered a plea of nolo contendere to one count of grand theft. During the hearing before the court, the state attorney specified that Ms. Painter was pleading to Count IV, which alleged theft of the meal money. The contemporaneous notes taken by the court clerk state that Ms. Painter was pleading to “Count 4.” The order of probation states that she pled to “Count 4.” However, the actual written “Plea, Waiver and Consent” signed by Ms. Painter and the attorneys shows the numeral “1” under the heading, “Count.” It is unclear from the document whether Ms. Painter was pleading nolo contendere to one count of grand theft, or to Count I of the information. Count I involved the allegation that Ms. Painter had improperly collected rent from one of the scholarship players, Megan Griffith. At the circuit court hearing, no mention was made of the specific factual allegations in the count to which Ms. Painter was pleading. The court made no findings of fact. Ms. Painter was not required to allocute to any facts.2/ Upon entry of the nolo contendere plea, the court withheld adjudication. Ms. Painter was given two years’ probation and ordered to make restitution of $4,400, perform 100 hours of community service, and was directed to have no contact with Gulf Coast or her former players. The undersigned finds that the understanding of all parties, including the court, was that Ms. Painter was pleading nolo contendere to Count IV of the information. The amount of restitution ordered is roughly consistent with the amount of meal money that was at issue in Count IV. The numeral “1” on the plea document is either a misprint or was intended to convey that Ms. Painter was pleading to a single count of grand theft. At the final hearing, Ms. Painter testified that she was given $4,752 in cash to pay for meals during the Las Vegas trip, which began on January 31, 2014, and ended on February 4, 2014. Ms. Painter testified that if the girls were splitting up to eat at different restaurants, she would dole out cash to each group. If everyone was eating at the same restaurant, all the girls would place their orders, and Ms. Painter would pay the entire tab. Ms. Painter testified that this had been her practice on team trips for some time. She stated that she used to give each girl her portion of the total meal money at the start of a trip. However, some girls would inevitably spend all of their money before the end of the trip and Ms. Painter would have to pay for their meals out of her own pocket. By doling out the money one meal at a time, Ms. Painter ensured that it would last the entire five days. Ms. Painter denied keeping any of the meal money for herself. She admitted that she did not keep receipts from each meal she purchased, but testified that meal receipts were not required on multiple day trips, such as the Las Vegas tournament. Nothing she did on this trip was different than her usual practice. At the end of the trip, she returned $132 in unspent meal money to the athletic department. Ms. Painter testified that her nolo contendere plea was made for financial and emotional reasons. The case had dragged on for 17 months. The ordeal was humiliating and exhausting. She stated that accepting the plea deal was the hardest decision she had ever made, but that she did not in fact take any of the meal money from her softball players. The Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. The undersigned did not admit the deposition of Gulf Coast Athletic Director Gregg Wolfe because it was a discovery deposition taken in Ms. Painter’s criminal case. The undersigned did admit the Bay County Sheriff’s Office case file on Ms. Painter’s criminal case, which included witness interviews and Ms. Painter’s bank statements. However, the case file was admitted on the understanding that it was a hearsay document that could only be used to supplement or explain other evidence. In the absence of competent non-hearsay evidence, or any showing by the Department that elements of the case file would be admissible over objection in a civil trial, the case file was of no utility. The Department’s only witness aside from Ms. Painter was its employee Allison Olson, the benefits administrator in the Bureau of Retirement Calculations. Ms. Olson’s knowledge of the case was gleaned purely through her review of the paper record, including the case file and the transcripts of depositions taken in the criminal proceeding. She had no first- hand knowledge of any of the events in question. Ms. Painter offered the deposition testimony of Joanne Booker, a member of Ms. Painter’s softball team at the time of the Las Vegas trip and currently an assistant basketball coach for Gulf Coast. In most essentials, Ms. Booker corroborated Ms. Painter’s testimony. Ms. Booker did not recall many particulars as to how the meals were purchased, but testified that at each meal the players were either given cash by Ms. Painter or had their meals paid for by Ms. Painter. Ms. Booker recalled no problems as to meals and recalled no one complaining about food on the Las Vegas trip. Even if it were found that Ms. Painter’s plea was actually entered as to Count I, the findings would be much the same. Ms. Painter testified that the “rent” she was accused of collecting and pocketing from the scholarship players was actually a voluntary contribution toward the rent of the non- scholarship players, to enable the entire team to live together in the same apartment complex. Ms. Painter testified that any money she collected was turned over to the lessor of the apartments. Again, the Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. Ms. Painter’s testimony was at least credible enough to be accepted in the absence of any competent non-hearsay evidence to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order restoring to Susan Painter her rights and benefits under the Florida Retirement System and providing for payment to her of any past due benefits, together with interest at the statutory rate. DONE AND ENTERED this 25th day of September, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2018.
The Issue Whether Petitioner, Heike Stoll (f/k/a Heike Bybee), has standing to assert a claim or right to any portion of her former husband’s Florida Retirement System (“FRS”) benefits as an “innocent spouse” pursuant to Article II, Section 8(d) of the Florida Constitution, and section 112.3173, Florida Statutes (2017).1/
Findings Of Fact Mr. Bybee is a member of the FRS Investment Plan by virtue of his former employment as a deputy with the Sarasota County Sheriff, an FRS participating employer. On October 6, 2017, in Sarasota County Circuit Court Case Number 2017CF001018, Mr. Bybee was found guilty by jury verdict of the following felonies under Florida law: Kidnap- Commit or Facilitate Commission of Felony; Crimes Against Person-Exploitation Elderly or Disabled Adult $20,000 to $100,000 dollars; Fraudulent Use of Personal Identifying Information (8 counts); and Computer Crime to Defraud or Obtain Property (3 Counts) (referred to collectively as the “felony convictions”). On October 6, 2017, judgment was entered against Mr. Bybee adjudicating him guilty of the felony convictions. The SBA notified Mr. Bybee that his felony convictions required forfeiture of his FRS benefits under section 112.3173(2)(e), Florida Statutes. Mr. Bybee did not file a petition for hearing to challenge the Notice of Forfeiture or otherwise assert that his felony convictions did not warrant forfeiture of his FRS benefits under the forfeiture statute. Mr. Bybee’s interest in his FRS benefits is subject to forfeiture due to his commission of the crimes, and his felony convictions. Ms. Stoll was married to Mr. Bybee on August 27, 1994. On or about May 9, 2017, Ms. Stoll filed her Petition for Dissolution of Marriage in Manatee County (Circuit Court Case Number 2017-DR-2067) asserting her interest in, inter alia, Mr. Bybee’s FRS benefits. On December 8, 2017, Ms. Stoll filed an “FRS Investment Plan Petition for Hearing” asserting her claim of entitlement to her spousal share of Mr. Bybee’s FRS benefits as an “innocent spouse.” On February 26, 2018, Mr. Bybee and Ms. Stoll executed a Marital Settlement Agreement. As to retirement accounts, Mr. Bybee and Ms. Stoll agreed to the following: Retirement Accounts/Pension. Wife shall receive as her sole property, and all equity and value therein, all retirement accounts and/or pensions in the Husband’s sole name, in the joint name of the parties, and/or in the Wife’s sole name, free and clear of any claims or interest which Husband may have thereto. Specifically, Husband has a pension and/or retirement account through the County of Sarasota Sheriff’s Department, State of Florida. Wife shall receive as her sole property, and all equity and value therein, in said pension and/or retirement account, free and clear of any claims or interest which Husband may have thereto. Further, Husband assigns, transfers, and relinquishes any legal or equitable claims, causes of action, or remedies of any nature against the pension and/or retirement account through the County of Sarasota Sheriff’s Department, State of Florida; and Husband shall fully cooperate with Wife in any and all respects as necessary for Wife to pursue any such legal or equitable claims, causes of action, or remedies related any manner said pension and/or retirement account. Ms. Stoll was not charged with or convicted of any crimes related to Mr. Bybee’s felony convictions. Ms. Stoll’s testimony was credible that she was unaware of Mr. Bybee’s crimes, and had not benefited from them in any fashion. On April 16, 2018, a Final Judgement of Dissolution of Marriage was entered in Manatee County Circuit Court Case Number 2017-DR-2067 that “approved, ratified and incorporated” the marital settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner is not entitled to her former husband’s retirement benefits, because he was a public employee convicted of specified offenses; and pursuant to section 112.3173, he forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account upon committing the crimes. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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, 2018.
Findings Of Fact Petitioner was employed for 22 years at G. Pierce Wood Memorial Hospital (GPWMH) as a human services worker I. She was a permanent career service employee. It is undisputed that Petitioner failed to report to work or to seek approval for leave after March 5, 1987. A notice was sent to Petitioner on or about April 14, 1987 by M. H. Townsend, Personnel Manager at GPWMH, informing her that an employee who is absent without authorized leave for three consecutive work days is deemed to have abandoned her position. On April 16, 1987 Petitioner signed a return receipt acknowledging receipt of this notice. She continued to be absent from her position without authorized leave and was notified on April 27, 1987 that she was deemed to have abandoned her position. Petitioner was therefore separated from her position with GPWMH. Petitioner offered no evidence to explain her unauthorized absence from March 5, 1987 to her separation on April 27, 1987. She testified she was not physically able to work, but did not support this testimony with any medical evidence. To the contrary, medical records introduced on behalf of Respondent indicate Petitioner was examined and determined to be able to return to light duty work in February, 1987. Respondent had thereafter assigned Petitioner to a light duty program consistent with her medical evaluation.
Recommendation The final hearing in this case was held on August 6, 1987, in Arcadia, Florida before Donald D. Conn, Hearing Officer with the Division of Administrative Hearings. The parties were represented as follows: Petitioner: Marjorie R. Miller, pro se 1002 Rainbow Avenue Arcadia, Florida 33221 Respondent: George Oujevolk, Esquire Post Office Box 129 Arcadia, Florida 33221 The issue in this case is whether Marjorie R. Miller (Petitioner) abandoned her position at G. Pierce Wood Memorial Hospital by being absent without authorized leave for three consecutive work days. Petitioner has requested the Department of Administration to review the facts of this case and to issue a ruling as to whether the circumstances constitute an abandonment of her position. At the hearings Petitioner testified on her own behalf and also called Georgia Edwards and May Robinson. Respondent called M. H. Townsend, Louise Bell, Denise Wood, and Ellen Walters. Respondent introduced eight exhibits. No transcript or proposed findings of fact have been filed.
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2014),1/ by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and 2nd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency responsible for the enforcement of the workers’ compensation insurance coverage requirements established in chapter 440. On June 1, 2015, Investigator Abedrabbo conducted a random workers' compensation compliance check at 11422 North 56th Street, Tampa, Florida 33617. During the course of the compliance check, Investigator Abedrabbo observed two individuals installing a stone façade on a building that was under construction at the identified address. It is undisputed that the two individuals observed by Investigator Abedrabbo were, at the time of observation, employed by Respondent. In support of its 2nd Amended Order of Penalty Assessment, the Department prepared a penalty calculation worksheet showing a total penalty owed of $17,274.30.3/ Respondent does not challenge the accuracy or method of calculating the assessed penalty, but only asserts that the penalty is “too high” and the company cannot afford to pay it.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding that Respondent, Cortes Pre Cast Stone and Foam Corp, violated the provisions of chapter 440 by failing to secure the payment of workers’ compensation and assessing against Respondent a penalty in the amount of $17,274.30. DONE AND ENTERED this 18th day of February, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 18th day of February, 2016.
The Issue The issue is whether the Department of Financial Services properly assessed a penalty on Petitioner for working in violation of a reinstated Stop-Work Order.
Findings Of Fact The Division is charged with the regulation of workers' compensation insurance in the State of Florida. Petitioner, Extraordinaire Home Improvements, Inc. (Extraordinaire Homes), is a corporation located in Jacksonville, Florida, and is engaged in the business of building construction, primarily roofing. Charlie Sakakini is the owner of Extraordinaire Homes. On October 20, 2004, the Division issued a Stop-Work Order and Order of Penalty Assessment. On October 29, 2004, the Department issued an Amended Order of Penalty Assessment to Petitioner in the amount of $8,079.29. Also on October 29, 2004, the parties entered into a Payment Agreement Schedule for Periodic Payment of Penalty wherein Mr. Sakakini agreed to remit monthly payments on behalf of Extraordinaire Homes to the Division in the amount of $589.95 for 11 months. The payment schedule informed Petitioner that failure to comply with the terms of the agreement would result in the immediate reinstatement of the Stop-Work Order. The Division issued an Order of Conditional Release from Stop-Work Order the same day the agreement was signed. Petitioner, through its owner, Mr. Sakakini, failed to make the payments required by the agreed payment schedule. Accordingly, the Division issued an Order Reinstating Stop-Work Order (Reinstatement Order) on July 27, 2006. The Reinstatement Order informed Petitioner that it must cease all business operations in the State of Florida until an order releasing the Reinstatement Order was issued. Mr. Sakakini acknowledges that Petitioner was actively conducting business operations, i.e., roofing work, on 100 days in the Fall of 2007, despite the Reinstatement Order having been issued. On September 28, 2007, the Division issued an Order Assessing Penalty for Working in Violation of Reinstated Stop-Work Order assessing a penalty of $406,000.00. The amount of the assessed penalty was reduced to $100,000.00 in a Second Amended Order of Penalty Assessment as a result of an Order Granting Motion to Amend Order of Penalty Assessment entered by the undersigned on April 28, 2008. Of the 100 days worked during the pendency of the Reinstatement Order, 25 of those days involved work on Mr. Sakikini's personal residence. During this time, business was slow, and he was trying to give his workers "something to do so that they can make some money." Mr. Sakikini continues to live in the home where this work took place. Mr. Sakikini paid the workers who worked on his personal residence with checks from the business account of Extraordinaire Homes. Mr. Sakikini considers the amount of the penalty, i.e., $1,000.00 per day of violation, to be excessively harsh when applied to a small businessman like himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Respondent, Department of Financial Services, Division of Workers' Compensation, enter a final order amending the Second Amended Order of Penalty Assessment, assigning a penalty of $75,000.00. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 27th day of June, 2008.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Amended Charge of Discrimination filed by Petitioner on April 8, 1997.
Findings Of Fact 1. At all times material hereto, Petitioner was employed by Respondent, Clerk of Court, Duval County. She was a Clerical Support Aide II until her promotion to Court Records Aide in 1996. Her duties in both positions involved administrative support clerical work, which included cashier functions. 2. The quality of Petitioner's work is not at issue, as Petitioner received satisfactory and above satisfactory evaluations while employed by Respondent. 3. In 1996, Petitioner was under the supervision of Janice Sain in the Traffic Department. Ms. Sain held the position of Assistant to the Clerk. Her responsibilities included overseeing the traffic violations bureau, purchasing department, and the tax deeds department. At the time, Petitioner was assigned to Courtroom 51 which handles first appearances for traffic-related cases, accidents, and misdemeanors. Break Room Incident 4. Employees such as Petitioner would report to work by faxing a daily sign-in sheet each morning showing that the employee was on duty. It was in this manner that Ms. Sain would keep track of whether employees had reported to work from the various branch locations around the city. If an employee was unable to communicate by facsimile, the employee would call in to report that they were at work. 5. On or about November 22, 1996, Petitioner's immediate supervisor, Wanda Myers,’ advised Petitioner that she had not received Petitioner's daily sign-in time sheet. She repeatedly questioned Petitioner regarding the time sheet. Petitioner became nervous and returned to her desk in the cashiering area. Petitioner began shaking and gasping for breath. Petitioner was instructed by Ms. Myers to go into the employees' break room.’ 6. Petitioner believes that a sign which read, "Out of Order" was placed on the outside door of the break room while she was in there. However, there was no evidence presented at hearing to support that belief. The witnesses who were at work that day did not recall seeing a sign on the door. 7. Petitioner filled out a leave request form for sick leave from 3:00 p.m. until 4:30 p.m. Ms. Myers denied that request writing in the comments section, "Denied-told her Janice Sain on way to office to speak with her and told her she could not leave." 8. Ms. Sain was called by Wanda Myers who requested that Sain come to the Traffic Department ("Traffic") as soon as possible to counsel Petitioner. Ms. Sain went to Traffic and spoke to Petitioner. Petitioner filled out another leave slip that afternoon for sick leave from 4:00 p.m. until 4:30 p.m. which was approved by Janice Sain. Ms. Sain wrote in the comment section, "Jarrilyn used her break and went home upset at 3:40." 9. Petitioner called her fiancé, Edward Davis, who met her at her job. Petitioner drove herself home and Mr. Davis followed her. 10. Petitioner later submitted an amended leave request form for the same date and time period but requesting that the leave be designated as worker's compensation. This leave was disapproved as Petitioner's worker's compensation claim was denied and she, therefore, was not entitled to worker's compensation leave. Respondent does not have the authority to approve worker's compensation leave without notification from the worker's compensation office that the claim had been approved. 11. Petitioner sought medical attention on November 25, 1996, three days after the break room incident. The doctor who saw Petitioner wrote a note excusing her from one day's work: "Jarrelyn [sic] is to be excused from work for a period of 1 day and may resume work as of Wed Nov 27, 1996." Petitioner returned to the doctor again on November 27, and December 4, 1996. No documentation was presented as to Petitioner's ability or inability to work as a result of those doctors' appointments. 12. There was no evidence presented that Petitioner was denied sick leave when requested, with the exception of waiting 40 minutes on November 22, 1996. Transfer to University Boulevard Branch Office 13. Petitioner's promotion to Court Records Aide was effective December 9, 1996. On approximately the same date, another employee, Mary Carter, had an accident and broke her back. Ms. Carter had previously been assigned to the Beaches Branch satellite office. Ms. Carter's medical absence led toa rotation of the cashier staff to provide adequate staffing in the various branch offices. Petitioner was transferred to the University Boulevard branch office as a result of this rotation of staff following Ms. Carter's accident and subsequent medical absence. 14. It is common for cashiers employed by Respondent to have varying work locations over a period of time. Assignments for cashiers were subject to change. Respondent tries to provide three to seven days notice to employees on permanent location changes. 15. Respondent's branch offices are physically located within the county Tax Collector's branch offices. Branch offices are also known as satellite offices. The University Center branch office has only one employee (cashier) of Respondent. 16. Petitioner did not provide Respondent with any documentation suggesting that she had medical restrictions relating to her employment duties prior to her transfer to the University Boulevard branch. Lunch Hour at Branch Offices 17. The branch or satellite offices were operated in 1996 from 8:00 a.m. to 5:00 p.m. Employees of Respondent assigned to these branch offices, at that time, did not have a designated lunch period. The times that employees were able to take breaks were determined by the public. That is, sometimes lines of people waiting for assistance would be long. At other times which were less busy, employees took their breaks. Employees at branch offices frequently worked through lunch (as lunchtime was a typical time when the public would come in) and the employees would be paid overtime.* Employees would be given signs to place in their cashier windows for temporary breaks. 18. If an employee had an appointment or needed a designated time period away from the satellite office, Respondent requested that the employee provide advance notice in an effort to facilitate securing a staffing relief. Lorraine Thomas, who is currently a Court Records Aide Senior, would provide lunch relief on occasion to the satellite offices. Ms. Thomas would also provide relief when a clerk was out sick, if the employee's children were sick, or if an employee had doctor's appointments or other personal business. In the case of an emergency, cashiers at the branch office would need to call Traffic for relief. Ms. Sain would often transport employees in an effort to ensure coverage at the branch offices. Despite these efforts, there were times that a branch office would be closed due to being understaffed. 19. At the time of Petitioner's transfer to the University Boulevard office, none of the medical documentation provided by Petitioner to Respondent indicated that Petitioner had medical restrictions regarding her employment. 20. After being advised of the transfer to University Boulevard, Petitioner put in a transfer request dated December 11, 1996. The transfer request was submitted to Gwendolyn Loadholtz, Director of Human Resources. The transfer request states her reason for a transfer was to learn something new. Petitioner also put a check mark next to the word "other" but did not add any further explanation in the space provided. Petitioner did not state any medical reason for the transfer request. 21. Petitioner's doctor signed an Excused Absence from Work form dated December 12, 1996, stating that Petitioner should be excused from work from December 16, 1996, through December 20, 1996. 22. Petitioner's doctor completed a Medically Excused Absence form which stated that Petitioner was under the doctor's care for anxiety and depression, and "it is recommended that she be allowed a daily lunch break." The date of this form is not entirely clear but appears to be January 2, 1997. According to Petitioner, her doctor's office faxed this form to Respondent. Respondent, however, has no record of receiving it. Ms. Loadholtz, Director of Human Resources, testified that she did not receive it and that it was not in Petitioner's personnel file. Ms. Wanda Myers’ last day of employment was January 3, 1997, and there is nothing in the record to indicate whether or not Myers received the doctor's note. In any event, Petitioner wrote a hand-written letter dated January 3, 1997, to "Traffic Management" complaining that she was not getting a lunch hour. 23. Petitioner was treated in the same manner as other employees at the branch offices of Respondent regarding lunch breaks. Petitioner was not the only branch employee without a designated lunch break. 24. On or about January 6, 1997, Petitioner filed a grievance, through her union steward, regarding the lunch break issue. The grievance was resolved in Petitioner's favor. Thereafter, branch employees were afforded a lunch break if they wanted one. 25. Petitioner worked at the University Boulevard branch from December 16, 1996, until January 21, 1997, when her transfer request was granted and she was moved to Misdemeanor "A". Transfer to Misdemeanor "A" 26. Petitioner's doctor wrote a letter dated January 20, 1997, which stated in pertinent part: This is to state that the above named patient has been under my care. She has been diagnosed to have an anxiety disorder that at the present time is exacerbated by the stimulation of having to deal with the public in her place of work. It would be to this individual's advantage, as far as recovering from her present condition, to be placed temporarily in a position in which she would not have to be dealing directly with the public. 27. Petitioner's request for transfer was granted after Respondent received this January 20, 1997, letter from Petitioner's doctor. She was transferred to the Misdemeanor "A" Department effective January 21, 1997. That Department consisted of cashiering, as well as processing violation of probation cases, worthless checks, and processing the Salvation Army payments. Maxine Russell, Senior court Records Clerk, was her supervisor at Misdemeanor "A". Ms. Russell had no knowledge of 10 Petitioner's having a serious medical condition and did not regard her as having a disability. When Ms. Russell became aware of the January 20, 1997, doctor's letter regarding Petitioner, she assigned Petitioner to work at a desk processing payments with minimal contact with the public. 28. Ms. Russell held an initial conference with Petitioner on January 30, 1997, to go over her duties. In a written chronology that Russell maintained during that time period,’ a notation was made on January 21, 1997, that Petitioner volunteered her assistance in helping on the counter and cashiering when necessary. Petitioner's testimony denied that she volunteered but acknowledged that she did on occasion work at the counter when requested. 29. Petitioner received a mid-probation evaluation on or about March 5, 1997, and received a satisfactory rating in every category on the evaluation sheet. 30. Since the January 20, 1997, doctor's letter referenced the desirability for Petitioner to be placed in a non-public job setting, Russell requested an updated doctor's statement regarding her need for continued accommodation. This request was made on or around March 18, 1997. Russell needed the statement to keep Petitioner in a non-public setting since most of the employees' duties involved contact with the public. Russell did not receive an updated doctor's statement regarding Petitioner's need for further accommodation. 11 31. Petitioner complained about her new assignment and felt it was not adequately addressing her medical needs. On or about April 7, 1997, Russell moved Petitioner to yet another desk. Her new duties included processing probation violations which did not involve working with the public, and answering phones during breaks and lunch times. Periodically, Petitioner would have to deal with probation officers, but not members of the public. 32. Petitioner had a doctor's appointment on April 2, 1997. She returned with a Medically Excused Absence form which stated that Petitioner was under the doctor's care for counseling "from 4/2/97 to se" + with nothing written in the blank. As April 2, 1997, was the only date referenced on this form, the form was simply an excuse from work for that date only. Petitioner's leave record shows she took one and one-half hours of sick leave that day. The form was silent as to any continuing work conditions that were necessary or even recommended for Petitioner. 33. Petitioner received a satisfactory performance evaluation on August 5, 1997. 34. Petitioner's leave record reveals that she frequently was granted sick leave and was also granted leave without pay when her leave was exhausted. She was not disciplined for excessive leave nor is there any suggestion in the record that Respondent accused Petitioner of abusing her leave. 12 35. Other than the January 20, 1997, letter stating that it would be to Petitioner's individual advantage to be placed temporarily in a position in which she would not have to be dealing with the public, there is nothing in the record to support anything more than a temporary placement of Petitioner in a position not dealing with the public.
Conclusions For Petitioner: Jarrilyn D. Black, pro se 8030 Old Kings Road, South Number 49 Jacksonville, Florida 32217 For Respondent: LaShanda R. Dawkins, Esquire 117 West Duval Street Suite 480 Jacksonville, Florida 32202
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED : That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 13" aay of July, 2001, in Tallahassee, Leon County, Florida. Ait Bidsex \, dis oe f pos Adhinistrat 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 /3%> day of July, 2001. 17
