The Issue The issue is whether Charles C. Burlingame's request to purchase and upgrade prior regular service with the City of Panama City under the Senior Management Service Class should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this retirement dispute, Petitioner, Charles C. Burlingame (Burlingame), seeks to have certain prior service with Petitioner, City of Panama City (City), upgraded under the Senior Management Service Class (SMSC) so that his retirement benefits will vest at an earlier date. Respondent, Department of Management Services, Division of Retirement (Division), has denied the request on the ground that "the duties of [Burlingame's former] position were different from the duties of [his] current position," and that under these circumstances, Section 121.055(1)(i), Florida Statutes (1997), required that the request be denied. Burlingame was first hired by the City on February 14, 1994, as Human Resources Director/Safety. As such, he was one of approximately 16 City department directors. At that time, Burlingame was enrolled in the "regular" class of the Florida Retirement System (FRS). In 1998, the Legislature authorized local governments (as well as state agencies) who employed at least 200 individuals to designate an additional employee under the SMSC. Because the City employed that number of individuals, it was allowed to designate another employee for SMSC. Burlingame was selected as the employee, and he was promoted to a new position with the title Assistant City Manager/Human Resources/Safety Director. At the same time, his old position was abolished. In conjunction with his promotion, Burlingame prepared a job description for his new position. The old and new duties are described in the documents attached to Respondent's Exhibit 2. They reflect, at least on paper, that the functions and illustrative duties of the two positions are not identical. For example, in his new position, Burlingame is now in charge when the City Manager is absent from the City. He also assists the City Manager "in directing the overall operations of the City," as well as performing his former duties. According to Burlingame, however, these new duties account for no more than five percent of his total duties. The remainder coincide with the duties performed under his old position. Under the terms of the City's retirement system, the retirement benefits for a SMSC employee vest after 7 years of service, while a regular employee does not vest until after 10 years of service. Therefore, Burlingame wished to upgrade his prior service between February 14, 1994, and September 29, 1998, when he was changed to SMSC, since this would allow him to vest in fewer years. It would also allow him to accumulate more retirement points (2 per year) under the FRS for each year of service than he would have earned as a regular employee (1.6 per year). When Burlingame was approved for membership in the SMSC in October 1998, the City began processing an application with the Division on his behalf for the purpose of determining the "cost to upgrade past service to [SMSC] to 2-14-94." Because of a large backlog of work caused by Deferred Retirement Option Program applications, the Division was unable to act on Burlingame's request until the early fall of 1999. After the City made several inquiries concerning its pending request, a Division Benefits Administrator, David W. Ragsdale, wrote the City on September 15, 1999, and advised that "[s]ince the position Mr. Burlingame filled as Human Resources/Safety Director had different duties than the Assistant Manager/Human Resources/Safety Director, he is ineligible to upgrade because the position of Human Resources/Safety Director no longer exists." This was followed by another letter on November 4, 1999, which reconfirmed the earlier finding and offered Petitioners a point of entry to contest the proposed action. Petitioners then initiated this proceeding. There is no rule or statute which provides that if the job duties of a position upgraded from regular to SMSC do not remain the same, prior regular service cannot be upgraded. However, since the inception of the SMSC in 1987, the Division has consistently ascribed that meaning to the words "within the purview of the [SMSC]" in Section 121.055(1)(i), Florida Statutes (1997), and Rule 60S-2.013(2), Florida Administrative Code. Thus, if the new duties are "not within the purview" of the past regular service class, that is, they are different in any respect, the employee cannot purchase and upgrade the prior service. This interpretation of the statute and rule was not shown to be clearly erroneous or outside the range of possible interpretations.
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 denying Petitioners' request for an upgrade of Charles C. Burlingame's service under the Senior Management Service Class. DONE AND ENTERED this 21st day of March, 2000, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 21st day of March, 2000. A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Cecilia Redding Boyd Bryant & Higby, Chartered Post Office Box 860 Panama City, Florida 32402-0860 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Celeste H. Tiemsanguan (Petitioner) abandoned her career service position with the Department of Health and Rehabilitative Services (Respondent).
Findings Of Fact Petitioner was employed as a clerk specialist with Respondent from October, 1988 until the end of December, 1988, and during such employment was a member of the career service system. The last day on which Petitioner worked was December 21, 1988. Petitioner brought a note to the home of her supervisor at 7:30 a.m. on December 22, 1988, stating that, "Effective this date I request six months maternity leave, with the Doctor's excuse to follow . . . ." Petitioner never provided a doctor's statement certifying her pregnancy, with specific beginning and ending dates for maternity leave, as required by the Respondent's Procedure No. 60-5 which governs leave without pay. By letter dated December 22, 1988, the Respondent attempted to notify the Petitioner that she needed to submit a doctor's statement prior to her leave being approved. This letter was sent by certified mail, return receipt requested, to Petitioner's last known address. However, it was returned to the Respondent as undeliverable. Petitioner did not report to work and made no further contacts with Respondent after December 22, 1988. She never provided a doctor's certification. On December 29, 1988, Petitioner was deemed to have abandoned her position, and notice of her abandonment was mailed to her on that date by certified mail, return receipt requested. Again, this letter could not be delivered. It became known to the Respondent on January 3, 1989, that Petitioner was in jail, and personal service of this notice of abandonment was accomplished by Betty Maddux, her immediate supervisor, on that date. Petitioner refused to sign acknowledging receipt of this letter. Petitioner did not properly request approval of maternity leave because she never provided a medical certification. She abandoned her position because she never received approval from Respondent for maternity, or any other type of leave. Therefore, between December 22 and December 29, 1988, Petitioner was absent without approved leave for three consecutive work days. Notice of the final hearing was sent to Petitioner at her last known address of record, and was not returned as undelivered. In fact, the Petitioner ordered subpoenas from the Division of Administrative Hearings on July 13, 1989. The final hearing had previously been continued one time at the request of the Petitioner.
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 system. DONE AND ENTERED this 14th day of September, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1989. COPIES FURNISHED: Barbara McPherson, Esquire District Legal Counsel 701 94th Street North St. Petersburg, FL 33702 Celeste H. Tiemsanguan 628 88th Avenue North, #2 St. Petersburg, FL 33702 John Miller, Esquire General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Gregory Coler, Secretary 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Larry Scott, Esquire 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel 435 Carlton Bldg. Tallahassee, FL 32399-1550 A. J. McMullian, III Interim Secretary Dept. of Administration 435 Carlton Bldg. Tallahassee, FL 32399-1550
The Issue Is the Petitioner handicapped? Was the Petitioner capable of performing her duties satisfactorily? Did Respondent take adverse personnel actions against the Respondent? Were the adverse personnel actions which were taken against the Petitioner based upon her disability? Did the Respondent have a legitimate nondiscriminatory basis for taking the adverse actions against Petitioner? Were the reasons articulated by the Respondent pretextual? Did the Respondent provide reasonable accommodations for the Petitioner? To what relief is the Petitioner entitled if she prevails? Are the Petitioner's rights limited by her status as a non-tenured employee on annual contract status? Is the Petitioner entitled to costs and reasonable attorneys fees?
Findings Of Fact Dr. Tony Mason was employed by the School Board of Leon County, Florida, as the Coordinator for Diagnostic Services on January 2, 1986. As is done with all employees of the School Board, she was recommended for employment by the board by her immediate supervisor, Dr. Ruth Mitchell. Dr. Mitchell supervised from four to six coordinators of units similar to the Diagnostic Services during Petitioner's tenure with the Respondent. Each of these units was headed by an individual who was not handicapped and who had an educational background similar to that of the Petitioner. The position requirements for the position of Coordinator for Diagnosis Services were a background in physiology, social work, or a related field as well as educational and administrative background or experience. Dr. Mason holds the following degrees: Bachelor of Arts and Social Studies, English and Speech, Masters Degree in Counselling and Physiology, a doctorate in Administration and Supervision, and an Educational Specialist degree. She was employed by the U. S. Department of Education for several years in an administrative capacity. The Petitioner was well qualified for the position of Coordinator of Diagnostic Services Unit. At the time the Petitioner was hired she was handicapped. Her primary impairment is cerebral palsy. The Petitioner has suffered from this condition since the age of three. This condition is readily apparent from talking with and observing the Petitioner. The Petitioner also has had a partial gastrectomy. This latter condition is not observable. During her employment, she advised her supervisor, Dr. Mitchell, of the nature, symptoms, and problems associated with both conditions. Both impairments significantly limit Petitioner's major life activities. Cerebral palsy, a neuromuscular disease, impedes Petitioner's ability to walk, and causes her to speak slowly. In addition, her speech is distorted although very understandable. A partial gastrectomy is a surgical removal of a portion of one's stomach. Both of the Petitioner's disabilities are negatively impacted by extreme stress. Extreme stress causes the Petitioner's muscles to contract and lock causing intense pain. Inordinate stress causes the Petitioner to "dump" requiring her to go to the nearest restroom as quickly as she can. Both the Petitioner's disabilities are not affected by normal, everyday stress. There was no evidence presented that the Petitioner's disabilities in any way impaired her intellectual capacity or mental abilities. The Petitioner had never been terminated or asked to resign from any position prior to working for the Respondent. While working for the Federal Department of Education and completing her doctorate in 13 months, both of which are stressful activities, the Petitioner did not suffer stress induced impacts on her disabilities. The Petitioner performed the duties of Coordinator for Diagnostic Services for almost two years without difficulty. As Coordinator for Diagnostic Services, Dr. Mason was responsible for the administration of this unit which employed eight social workers and ten physiologists. They were responsible for testing students within the school district and preparing reports based upon their testing to determine the eligibility of the students for participation in various educational programs. The Diagnosis Services Unit (DSU) also employed two secretaries and, at various times during the Petitioner's employment, additional interns and part-time employees. The Petitioner was also responsible for preparing staff papers on matters related to Diagnosis Services for presentation to the School Board together with budget requests, schedules, preparations of grants, and other special reports which were from time to time requested by the Superintendent, Deputy Superintendent, or Petitioner's immediate supervisor. To assist her in the preparation of these reports, the Petitioner was initially assigned a secretary. This secretary also filed the unit's paperwork and generally assisted the Petitioner. The work load of the DSU was consistently high as the unit was responsible for evaluating approximately 2,000 students each year. There has been a steady increase in the work load of the DSU since 1976, and the work load continued to increase through the period of the Petitioner's tenure at the DSU and thereafter. The DSU had suffered from high work load and limited resources prior to and during the Petitioner's employment in the unit. A psychologist working in the unit testified that she suffered severe depression as a result of the stress created by the workload in the Unit. For assistance in preparing reports, the DSU could send draft reports to the word processing unit. However, the word processing unit was slow and not suited to the particular needs of the DSU because the word processing personnel were not familiar with the technical terminology used in the psychological and social work reports, and did not accurately transcribe the material which the DSU sent to them. This resulted in reports having to be returned to the word processing center for corrections. Because the Petitioner's unit was only third in order of priority for using the word processing center, the DSU's turn-around time was lengthy. One school psychologist had to wait an entire summer to receive materials she had sent to the word processing center, and then found it necessary to return them for corrections. The lack of adequate secretarial support adversely impacted the work of the DSU and the Petitioner's personal performance. Dr. Mitchell, the Petitioner's immediate supervisor, forbade the Petitioner to use her secretary for typing Petitioner's written reports because of the backlog in the unit. The Petitioner was forced to print her own work by hand. This was slow and adversely affected by her disability. Because the Petitioner could not use the secretaries who were assigned to and physically located in her unit, the Petitioner had to walk to the word processing center, where obstructions and uneven steps in the area of the unit's office made Petitioner's walking more difficult. This caused further delay. The practice of assigning short suspense projects made the absence of adequate secretarial support worse. The Petitioner paid for secretarial services to prepare various reports for the Respondent paying in one year over $900.00 for secretarial support to meet the demands of her job. The Petitioner made verbal requests for a secretary to her supervisor, Dr. Mitchell, and these requests were denied. The Petitioner made requests to the Superintendent and other members of the School Board Staff, and caused a letter to be written by her physician to the Board explaining the need for secretarial assistance as a reasonable accommodation for her disability. Although the Respondent denies that Petitioner made a request for a secretary as a reasonable accommodation for her disability, Petitioner's Exhibit No. 2, a memorandum to William Wolley from the Petitioner dated May 4, 1989, which specifically addressed other issues references the aforementioned physician's letter as follows: There is also a letter from a physician earlier relative to that issue in requesting some reasonable accommodation in terms of secretarial assistance that was an attempt to get my Secretary III reinstated . . . [.] The Respondent never assigned a secretary to assist the Petitioner in doing her work although the timeliness of the Petitioner's work was the primary complaint regarding the Petitioner. The school board's yearly payroll was in excess of $110 million. The salary for a secretary varied between $15,000 and $20,000 a year. At the time of Petitioner's employment, the Petitioner walked without the use of a walker although she walked slowly and with some difficulty. The Petitioner wanted to postpone using a walker to assist her in walking because use of a walker causes certain muscles to become dysfunctional and atrophied. Although the Petitioner had a walker in her office restroom and in her car, she avoided use of a walker wherever possible because, as stated above, they can cause the muscles to become dysfunctional, and because they can cause the individual to trip by catching on the uneven surfaces. In late spring or summer of 1988, Dr. Mitchell, the Petitioner's supervisor, told the Petitioner that she wanted the Petitioner to use a walker around the office complex. Dr. Mitchell made the Petitioner's use of a walker a condition of continued employment after Petitioner fell outside the Board's offices when she tripped over an uneven joint in the sidewalk and landed on a piece of broken curbing. A coworker, who is an R.N., was aware of how Petitioner felt about being asked to use a walker and explained to Dr. Mitchell that victims of cerebral palsy strive to maintain the maximum independence and postpone the use of such devices. Dr. Mitchell advised the coworker that if Petitioner wanted to work for the Respondent that she would have to use the walker. The Petitioner felt that Dr. Mitchell's demand was unwarranted, improper, not in her best interest, and refused to use a walker in the absence of a physician's recommendation. The Respondent never referred Petitioner to a physician for evaluation. Subsequent to Dr. Mitchell's demands that the Petitioner use a walker and Petitioner's refusal, Dr. Mitchell made derogatory comments to staff about how slow Petitioner walked. At this time, the professional relationship between Dr. Mitchell and the Petitioner became strained. Dr. Mitchell arranged to have a study done in early 1988 by Case Management Services Inc. Dr. Mitchell requested that Dr. Mason participate in this study which was presented to Dr. Mason as an assessment of the work environment of the board offices; however, the report prepared by the consultant appears to address not the work area, but Dr. Mason personally. The purpose of this report was to support Dr. Mitchell's demand that Dr. Mason use a walker. Notwithstanding the findings by the consultant that there were architectural and facilities maintenance problems which posed a danger to the handicapped, the consultant's first recommendation primarily addressed Dr. Mason's use of a quad-cane (walker). The second recommendation, "occupational therapy evaluation to determine means for enhanced functioning among campus architectural problems," appears to be limited to the Petitioner. In the spring of 1989, Dr. Mitchell gave Petitioner her first unsatisfactory annual performance evaluation. In addition, Dr. Mitchell only extended Dr. Mason's service contract for three months beyond the existing contract and denied Dr. Mason an increase in salary. Dr. Mason appealed Dr. Mitchell's evaluation and Dr. Mitchell reevaluated Dr. Mason's performance as satisfactory. Dr. Mitchell told Dr. Mason that this was the last time she would amend her evaluation of Petitioner pursuant to an appeal. Although not readily apparent from the file, Dr. Mason's employment contract was extended for an entire year and pursuant to that contract she was evaluated again in June of 1990. At that time, Dr. Mitchell evaluated Dr. Mason as unsatisfactory and extended her contract for only three months. During the year 1989-90, Dr. Mitchell documented every instance in which Dr. Mason appears to have departed from school board procedure or failed in any way to meet Dr. Mitchell's expectations. Dr. Mitchell contacted other supervisors of other activities within the school system and requested that they provide her with any information related to the failure of DSU to meet their expectations. See the memorandum of Dr. Mitchell to Beverly Blanton dated June 19, 1989. Dr. Mitchell required Dr. Mason to perform additional work unrelating to any specific program or project, and announced her intention to attend Dr. Mason's staff meetings, to hold weekly meetings to review Dr. Mason's logs and summaries of activities, and to work with Dr. Mason on staff development. (See memorandum Dr. Mitchell to Dr. Mason dated April 10, 1989, subject: Suggestions for improvement in evaluation.) These requirements, placed upon Dr. Mason under the guise of improving her performance, formed the basis for additional criticism of Dr. Mason while at the same time taking up more of her time and undercutting Dr. Mason's authority with her subordinates. Dr. Mitchell also requested access to Dr. Mason's medical records, a request she did not make of any other employee. Dr. Mitchell demonstrated an amazing lack of tact with Dr. Mason. Dr. Mitchell advised Dr. Mason on one occasion when Dr. Mason was hospitalized for burns suffered in an accident while on school business that Dr. Mason had picked an extremely bad time to be injured, and when Dr. Mason was recuperating at home from a severe fall, Dr. Mitchell threatened to bring a television crew to Dr. Mason's house for an interview if Dr. Mason could not come to work. One of the major complaints against Petitioner by Dr. Mitchell was the quality of the reports provided by Dr. Mason's unit to Ray King. A complete file of these reports was provided to Dr. Mitchell by Mr. King's staff as a result of a memorandum from Dr. Mitchell. (See Tab 6, Respondent's Exhibit 3.) The first of these 103 reports is dated May 18, 1988 and the last of these dated December 15, 1989. There were 97 reports returned from Mr. Ray's to Dr. Mason's section between 5-18-88 and 4-20-89. There were six reports returned from Mr. Ray's section after 4-20-89. Contrary to the assertions made by Respondent, the number of reports kicked back by Mr. King during the period following Dr. Mason's initial unsatisfactory evaluation were significantly reduced. The Respondent attempted to justify its denial of a secretary as a reasonable accommodation to Dr. Mason by stating that it was having fiscal problems, and by providing Dr. Mitchell with a computer. Because of Dr. Mason's handicap, she is unable to utilize a computer to prepare her own work. Further, notwithstanding Dr. Mason's inability to use a computer, Dr. Mitchell required her to be conversant in the operation of a computer so she could utilize the computerized data base. Contrary to the Respondent's assertion that Dr. Mason was only required to be knowledgeable about the computer's capabilities, Dr. Mitchell required Dr. Mason to demonstrate use of the computer to her secretary, and was harshly critical of Dr. Mason's inability to do so. Although additional memoranda purportedly documenting additional failings on the part of Dr. Mason and the DSU were introduced, Dr. Mason's explanations are adequate, and these secondary reasons for the adverse personnel action are not meritorious. Because of budgetary constraints in 1990, Dr. Mason's requests for authorization to fly to St. Petersburg to make a presentation at an educational conference was denied. Dr. Mason was told to drive to the conference or not to attend because attendance at the conference was not a part of her normal duties and responsibilities. Presentations at such conferences are considered professionally beneficial both to the individual and to the board. However, Dr. Mason admitted that she had not requested air travel as reasonable accommodation due to her handicap which makes long trips by car very painful and debilitating. On September 22, 1990, the Petitioner received a memorandum from Dr. Mitchell that her contract would not be renewed, and that Petitioner should leave all records in her office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: The Respondent reinstate the Petitioner to a position comparable to the position from which she was terminated (or in which the Respondent denied the Petitioner employment), The Respondent pay the Petitioner backpay, to include insurance and retirement benefits less $25,241, in accordance with this order, The Respondent pay the Petitioner's reasonable attorney fees and costs, and The Respondent be enjoined from further discrimination against the Petitioner. DONE and ENTERED this 19th day of July, 1993, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6043 Proposed findings of both parties were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings: Para 1-9 Adopted. Para 10 Irrelevant. Para 11-14 (1st sentence) Adopted. Para 14 (2d sentence) Contrary to best evidence. Para 15,16 Adopted. Para 17 Irrelevant. Para 18-42 Adopted. Para 43 Subsumed in 44. Para 44-45 Irrelevant. Para 49-54 Adopted. Para 55 Irrelevant. Para 56-80,82 Adopted or Subsumed. Para 81 Irrelevant. Para 83-92 Irrelevant. Para 93-99 Adopted. Para 100-118 Adopted. Respondent's Findings: Para 1-3 Adopted. Para 4-5 Irrelevant. Para 6 Contrary to best evidence. Para 7-11 Irrelevant. Para 12-13 Contrary to best evidence. Para 14 Irrelevant. Para 15 Contrary to best evidence. Para 16-17 Irrelevant. Para 18,19 Contrary to best evidence. Para 20, 21 The letter was not considered. Para 22-24 Contrary to best evidence. Para 25-27 Adopted. COPIES FURNISHED: Kathryn Hathaway, Esquire 924 North Gadsden Street Tallahassee, Florida 32303 Leslie Holland, Esquire Suite 800 2800 Biscayne Boulevard Miami, Florida 33167 Deborah J. Stephens, Esquire Graham C. Carothers, Esquire 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32301 Richard Merrick, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304-2907 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
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.
Findings Of Fact Petitioner is formerly the president of Brevard Ambulance Service, Inc., (BAS) a privately held corporation which contracted with Brevard County to provide the County with certain ambulance services within its territorial jurisdiction. The precise nature of the services and the business relation between BAS and the County is set out in a series of contracts covering the periods from October 1, 1969 to September 30, 1977. While employed as President and sole shareholder of BAS, Petitioner provided services to the Brevard County Civil Defense Agency as the Emergency Medical Services (EMS) coordinator. In the event of a disaster preparedness exercise, a national emergency, a space launch, or upon several other extraordinary occurrences, he was required to coordinate BAS's activities with the authorities in the County Civil Defense Office as well as with other ambulance service providers throughout Brevard and adjoining counties. The purpose of this coordination effort was to help assure that ambulance service was available when and where it was needed without undue delay. Brevard County is an unusually long county covering a distance in excess of 50 miles and thus required these coordination efforts. Petitioner rendered these coordination services to Brevard County Civil Defense Agency from 1961 until November 3, 1977, when he resigned his position with BAS and sold its assets. He became a full time employee of Brevard County on November 4, 1977, in the newly created position of Emergency Medical Services Director. Petitioner did not automatically secure this position. He was required to make application, be interviewed, compete with other applicants and be formally selected. There was no carry-over in benefits such as health insurance or accumulated leave from his prior position with BAS. Further, ambulance operations were not taken over on November 4, 1977 by Brevard County, but continued to be provided exclusively on a contract basis until March 1, 1978, when the County initiated its own service. In 1978, Petitioner made his first inquiry to FRS concerning his eligibility to purchase past service credit as EMS coordinator under Subsection 121.081(1)(g) Florida Statutes (F.S.) and Rule 22B-2.03(3), Florida Administrative Code (F.A.C.). Respondent initially declared Petitioner eligible to purchase past service credit based on the limited information furnished to it in 1978. At that time, Petitioner made no effort to go forward with the proposed purchase. In 1981, Petitioner attempted to purchase the credit and Respondent sought verification as to how petitioner had become a County employee, whether he had actually received a salary for the EMS Coordinator duties and whether an assumption of services had occurred. Finally, on June 20, 1983, Respondent advised Petitioner that he was not eligible to purchase past service credit. Petitioner received salary payments during the period from 1961 through 1977 from his employer BAS and estimates that approximately 5 percent of his time was spent in EMS coordination duties. He reasons that 5 percent of the salary which he earned between 1961 and 1977 was salary for EMS coordination functions, but he admits that the assignment of 5 percent of his salary was not made until 1978 when he first inquired into his eligibility to purchase past service credit. Petitioner had given no previous consideration to being paid for the EMS coordination duties and no specific payments for this function were provided by the County contracts.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request to purchase past service retirement credit. DONE and ENTERED this 12th day of March, 1984 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1984. COPIES FURNISHED: Eric B. Tilton, Esquire Post Office Box 5286 Tallahassee, Florida 32301 William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207C, Box 01 Tallahassee, Florida 32303 Andrew J. McMullian, III, Director Division of Retirement 2639 North Monroe Street Building C Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Willie Lee Hills was first employed at Sunland Center, Orlando, Florida, in 1976 as a CETA employee. He became an employee in a regularly established position in 1977 as Groundskeeper I. Petitioner first suffered an injury to his back in 1977 in a job- related accident. In addition, he subsequently reinjured his back in 1977 and 1980, and suffered a hernia. In 1981, following another back injury, surgery was performed on Petitioner to remove a disc in his vertebrae. Following this surgery he was returned to limited/light duty on January 25, 1982, in which his lifting was limited to twenty pounds. He was unable to perform the duties assigned. By letter dated March 8, 1982 (Exhibit 4), Petitioner was directed to return to work on March 11, 1982, or provide medical certification that he was unable to work. Petitioner reported for work on March 11, as directed. He was assigned light duty in the laundry. He worked until March 17, after which he took sick leave on March 18 due to taking an awkward step and twisting his back. Petitioner did not return to work after March 18, 1982. By letter dated May 7, 1982 (Exhibit 5) , Petitioner was directed to return to work performing light duty as a Refuse Station Attendant handling bags weighing no more than nine pounds each on May 14, 1982, and if unable to work provide a medical certificate of his illness. Petitioner did not report to work or provide a medical certification of his illness. He did call the Sunland Personnel Office and was directed to return to Dr. William Cox for treatment. Dr. Cox refused to reaccept Petitioner as a patient, but Petitioner neither advised Respondent of this fact nor submitted certification of illness from another doctor. By letter dated June 2, 1982 (Exhibit 6) , Petitioner was advised that because he had failed to return to work or submit medical certification of his inability to work it was assumed he had abandoned his position and was separated from Career Service employment. This appeal followed. Petitioner was pursuing worker's compensation claims for the work- related injury during the time here relevant. At the hearing he professed an inability to bend, lift more than ten pounds, climb stairs, sit or stand for periods greater than one hour, and generally presented the appearance of one who is physically incapable of performing the duties of a Groundskeeper I. Medical evaluations dated 8-31-82 (Exhibit 4) and 10-14-82 (Exhibit 3) agree that Petitioner has a fifteen percent (15 percent) permanent impairment of his body as a whole and that he has reached a plateau of progress beyond which he is not likely to go. Neither of these evaluations found Petitioner unable to perform light duties.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.
Findings Of Fact The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters." On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.
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 Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service. DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058 Respondent's Proposed Findings of Fact 1-15. Accepted. Accepted, but not material to resolution of disputed issues. Accepted. COPIES FURNISHED: Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455 Tallahassee, FL 32301 Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504
The Issue Whether Petitioner is eligible to participate in the Florida Retirement System based on his employment from January 29, 2001, through June 30, 2004.
Findings Of Fact The Secretary of the Department of Management Services through the Division is the administrator for the FRS. FRS was established by the State of Florida to provide pension benefits to eligible employees of the State of Florida and county agencies, including county school boards. Petitioner, George Tamalavich ("Petitioner" or "Mr. Tamalavich"), attended Fitchburg State College in Massachusetts, where he received a certificate for teaching in the trade industry. Prior to coming to Florida, Petitioner taught at the Worchester County Trade School for eight years, and participated in the Massachusetts State Pension Plan. In 1990, Petitioner relocated to Florida and obtained a part-time position, first for two days a week, then increasing to four days a week, teaching a computer-aided manufacturing and design course at McFatter Vocational Technical School (“McFatter”) in the Broward County School District (BCSD). In his initial position at McFatter, Petitioner testified that he knew he did not qualify for annual leave or other fringe benefits, including FRS membership, although he claimed not to remember that anyone specifically told him he was not receiving pension credit. From October 1993 until June 1999, Petitioner was employed by the BCSD in a full-time position under the terms of an annual contract. He testified that, with the annual contract, he had a salary, received fringe benefits and did not have to submit time sheets. Because he was employed in a regularly established position, Mr. Tamalavich was eligible for membership in the FRS and received service credit for 5 years and 9 months, through the end of his contract in September 1999. In September 1999, Petitioner requested and received a leave of absence for the 1999-2000 school year. The letter advising Mr. Tamalavich of the approval of his leave included a requirement that he notify the BCSB of his plans for the following year by March 1, 2000. In a letter dated February 14, 2000, the BCSB sent a reminder of the March 1, 2000, deadline. On April 3, 2000, the BCSB sent notice to Mr. Tamalavich by certified mail, with a receipt returned to the BCSB, that his termination would be recommended for failure to respond to the February 14, 2000, letter. Mr. Tamalavich testified that he received notice of his termination after the fact but not the letters setting the March 1 deadline. The notice of termination did not include information on appealing that decision. Mr. Tamalavich was hired at a different school in 2001. When he returned to work he signed agreements dated August 28, 2001, for the 2001-2002 school year; January 27, 2003, for the 2002-2003 school year; and August 25, 2003, for the 2003-2004 school year. Petitioner was employed as a part- time adult vocational education instructor at Atlantic Technical Center (“Atlantic”) in the BCSD during these school years. During his employment at Atlantic, Petitioner submitted time sheets and was compensated on an hourly basis. He acknowledged in his testimony that he was in a temporary position when he returned to work in August 2001. The agreements for part time employment at Atlantic provided that: THE ADMINISTRATOR MAY INITIATE OR TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the program/course “assigned” or the class will be canceled and this agreement shall be null and void. The employee's signature below indicates acceptance of the appointment subject to all that: terms and conditions of Board Policy 6Gx6- 4107. BCSD policy 6Gx6-4107 provides, in pertinent part, 2. The conditions of employment listed herein apply only to those personnel employed on a part-time, temporary basis to teach courses on a course-by-course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. . . . . Part-time temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. . . . . 7. Part-time temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time, temporary employees. . . . . 9. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits regardless of the time of service as a part-time employee. Mr. Tamalavich testified that he saw BCSD policy 6Gx6- 4107 for the first time at the hearing in this case, although he worked at Atlantic from August 2001, until he was forced to leave due to a serious illness on March 12, 2004. The principal of Atlantic, who hired Petitioner, testified that he would determine every nine or eighteen weeks whether enrollment was sufficient and then give Mr. Tamalavich his schedule. Because Petitioner did not have six years in the FRS prior to July 1, 2001, and was not employed in a regularly established position on July 1, 2001, when vesting requirements were reduced from ten to six years, the Division determined that he is not vested in the FRS and therefore he is not eligible to receive retirement benefits from the FRS. Mr. Tamalavich claims entitlement to more FRS service credit because of errors made by the BCSD, which reflected that he was enrolled in the FRS from July 1, 2003, until August 25, 2004, although initially his counsel asserted that the contested period of time extended to June 30, 2005. As a result of a computer programming error, the BCSB incorrectly grouped together all personnel who had worked for more than six months and notified them, including temporary adult vocational education instructors, that they were eligible for FRS service credit. The notice dated May 7, 2003, was sent to "Identified Employees" in temporary positions existing beyond six months advising the employees that they would be enrolled in FRS effective July 1, 2003. Mr. Tamalavich testified that he received the notice. After the notice of May 7, 2003, several temporary adult vocational education instructors began to request the Division to review their entire employment history to determine their FRS service credit. After receiving an inordinate number of these requests and reviewing on a case-by-case basis personnel documents provided by the BCSB, the Division determined that temporary adult vocational education instructors were being reported in error by the BCSD for FRS service credit. In a letter dated June 7, 2004, the Interim State Retirement Director wrote to the Superintendent of the BCSD, citing Florida Administrative Code Rule 60S-1.004(5)(d)(3), which excludes positions established with no expectation of continuation beyond one semester or one trimester. The letter also included other factors related to ineligibility for FRS credit, including compensation at an hourly rate, and employment based on enrollment and funding contingencies. The Superintendent was advised specifically that "[a]dult vocational education instructors are essentially temporary in nature, where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." On June 23, 2004, the Director of the Benefits Department responded for the BCSD conceding that part-time adult vocational education instructors, including those filling temporary positions, were inadvertently enrolled in the FRS beginning on July 1, 2003, and that the FRS contributions would be retroactively reversed. On August 25, 2004, a notice was sent by the BCSB to "identified employees" advising them that adult vocational education teachers were erroneously enrolled in the FRS, and that they would be removed retroactively to July 1, 2003. Mr. Tamalavich received the notice that did not include any information on appealing the decision. There was no claim of erroneous deductions from Mr. Tamalavich’s pay, despite his testimony that FRS contributions were taken out of his paycheck. Employee funds are not withheld for payments into the FRS plan. It is and has been, since 1975, solely employer-funded. For temporary employees who are not eligible for enrollment in the FRS, the BCSB provides a FICA Alternative Retirement Plan administered by Bencor. Contributions to the Bencor-administered plan were made on behalf of Mr. Tamalavich, who requested and received a distribution from that fund in January 2007.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request to participate in FRS from January 29, 2001, through June 30, 2004. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 8th day of April, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jane Letwin, Esquire The Law Office of Jane Letwin 10540 La Placida Drive, North Coral Springs, Florida 33065 J. Leonard Fleet, Esquire Fleet Dispute Resolution 625 32nd Avenue, Southwest Vero Beach, Florida 32968 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
