The Issue The issue in this cause is whether the prerequisites of Section 154.314, Florida Statutes, have been met. That section governs withholding of funds due to the county under revenue sharing or tax-sharing in order to forward said funds to a regional referral hospital to compensate the hospital for services rendered to an out-of-county indigent patient. Specifically, the parties stipulated and agreed that all prerequisites had been met except whether Tallahassee Memorial Regional Medical Center exhausted its administrative and legal remedies, as provided in Chapter 120, prior to certifying to the Comptroller's Office the amount due from Suwannee County. Suwannee County presented the testimony of Frank C. Davis and had one exhibit admitted in evidence. The Department of Banking and Finance (Department) had one exhibit admitted into evidence. Tallahassee Memorial Regional Medical Center (TMRMC) had six exhibits admitted into evidence. The Department waived the filing of a proposed order. Suwannee County and TMRMC submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of act in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact TMRMC is a regional referral hospital located in Tallahassee, Leon County, Florida. From May 15, 1985, to July 2, 1985, TMRMC provided medical care to Doris M. Cherry. The total bill for these services was $68,182.75. On July 10, 1985, TMRMC wrote to Suwannee County and requested reimbursement in the amount of $3,827.83 for the treatment rendered to Doris M. Cherry. This amount represented the maximum reimbursement which can be sought under Section 154.306, Florida Statutes. Reimbursement is limited to payment for 12 days of services at the per diem reimbursement rate currently in effect for the regional referral hospital under the medical assistance program to the needy under Title XIX of the Social Security Act. On July 23, 1985, Suwannee County, through its county coordinator, Frank C. Davis, refused TMRMC's request for payment and disputed whether the patient was entitled to the benefits under Chapter 154, Part IV. The letter from Suwannee County did not advise TMRMC of its right to request a formal hearing pursuant to Chapter 120 and it did not provide a point of entry as required in Rule 28-5.111(1), Florida Administrative Code. On December 20, 1985, TMRMC wrote to Suwannee County requesting an administrative proceeding to determine the issues and liability of Suwannee County to TMRMC for the claimed services. TMRMC also filed a formal Request for Hearing. TMRMC requested that the matter be referred to the Division of Administrative Hearings for a hearing to be conducted according to Section 120.57(1), Florida Statutes. Suwannee County failed to take any action on TMRMC's Request for Hearing. In an abundance of caution, TMRMC again wrote to Suwannee County on January 17, 1986, pointing out that no response had been received to the Request for Hearing and again requesting a hearing. TMRMC attached a copy of the Request for Hearing to this letter. As evidenced by the return receipt, the Board of County Commissioners received this letter on January 22, 1986. Suwannee County neither granted nor denied TMRMC's Request for Hearing. Instead, Suwannee County chose to ignore the request. The February 4, 1986, meeting of the Suwannee County Board of Commissioners shows that the Board voted unanimously to wait before responding to the request. No response was ever made. Suwannee county did not give written notice to TMRMC of their decision to ignore the request for hearing. TMRMC took no judicial action by mandamus or certiorari to enforce its right to a hearing. Further, TMRMC did not petition the District Court of Appeal for review of this matter. After waiting several months for a response from Suwannee County, on August 13, 1986, TMRMC certified to the Division of Accounting and Auditing, Comptroller's Office, the sum of $3,827.83 to be withheld from revenue-sharing or tax- sharing funds allocated to Suwannee County. The Department of Banking and Finance sent Its Notice of Intent to Withhold Funds to the Board of County Commissioners of Suwannee County on August 29, 1986. It was only in response to this action by the Comptroller's Office, acting through the Department of Banking and Finance, that Suwannee County requested a formal hearing. By its Request for Formal Hearing, Suwannee County attempted to raise and litigate the eligibility of Doris M. Cherry to the benefits of Chapter 154, Part IV. However, it is undisputed that these disputed issues the fact cannot be litigated in this proceeding because this hearing is limited in scope to determine only, if the prerequisites of Section 154.314, Florida Statutes, have been satisfied. Tallahassee Memorial Regional Medical Center, et al., v. Lewis, 399 So.2d 106 (Fla. 1st DCA 1981).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a final order determining that all prerequisites to Section 154.314, Florida Statutes, had been met and forward the amount certified to the Tallahassee Memorial Regional Medical Center from the revenue-sharing or tax-sharing funds due to Suwannee County. DONE AND ENTERED this 12th day of March, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3901 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 this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Suwannee County Proposed findings of fact 1, 3, and 4 are rejected as unnecessary. Proposed finding of fact 11 is rejected as being unsupported by the competent, substantial evidence. Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed findings of fact: 2(11); 5(1); 6(2); 7(3); 8(4); 9(5); 10(6); 12(9); and 13(10). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, TMC Proposed finding of fact 8 is rejected as being argumentative and conclusory. Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(4); 3(4); 4(4); 5(5 and 6); 6(7); 7(8); 9(10); and 10(9). COPIES FURNISHED: Walter W. Wood, Esquire Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Jesse F. Suber, Esquire Post Office Box 1049 Tallahassee, Florida 32302 Ernest A. Sellers, Esquire James W. Prevatt, Jr., Esquire Post Office Box 8 Live Oak, Florida 32060 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301
The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(7), Florida Statutes. Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Florida Commission on Human Relations fails to send a copy of the Charge of Discrimination to Respondent within five days of the complaint being filed, as required by Section 760.11(1), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Manuel Pedraza in DOAH Case No. 02-0238, and FCHR Case No. 99-1636, for failure to timely file his Petition for Relief. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE 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 June, 2002. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach Law Offices, P.A. 2532 Garden Street Titusville, Florida 32796 Toby Lev, Esquire Egan, Lev, & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner should be granted an exemption from disqualification for working in a position of trust with disabled adults and children pursuant to the provisions of Chapter 435, Florida Statutes.
Findings Of Fact Since 1979, Petitioner, Vernon Jackson (Petitioner), has been employed by the Department of Children and Family Services (Respondent) or its predecessor government agency, with the exception of a period in 1996-97. He is presently classified as a psychiatric aide. Petitioner worked in a unit of the Florida State Hospital in Chattahoochee, Florida, which provides care to the patients of the facility, and he is a caregiver. It is in that capacity that he is subject to the employment screening requirements of Chapter 435 of the Florida Statutes. On August 23, 1980, Petitioner's girlfriend, Willie Thomas, got into an argument with a 17-year-old girl named Gwendolyn Arnold. When the argument between Thomas and Arnold escalated into a physical fight, Petitioner became involved in the fray. Arnold's 15-year-old brother also joined in the activity. As a result of the incident, Petitioner was charged with the misdemeanor offenses of disorderly conduct, resisting arrest without violence, and battery. Petitioner pled guilty to all three of the charged offenses. Adjudication of guilt was withheld by the court. Petitioner paid a fine of $50, plus costs, for the first two counts, disorderly conduct and resisting arrest without violence, and a fine of $100, plus costs, for the battery charge. In conjunction with the battery charge he was placed on probation for a period of one year. Petitioner's next criminal episode also involved Willie Thomas, his earlier girlfriend. On April 16, 1981, Petitioner was arrested and pled guilty to trespassing at Thomas’ home. He was required to pay a fine of $50. Although, adjudication was again withheld, he was placed on probation to run concurrently with his earlier probation sentence. Some months later, on November 19, 1981, Petitioner pled guilty to disorderly conduct involving a public brawl with two men. He paid a fine of $75 and adjudication of guilt was withheld. Employment screening at the Florida State Hospital was commenced in 1997 for positions of employment similar to that held by Petitioner. Petitioner's 1980 offense and 1981 plea was overlooked until this year. On or about April 20, 2002, after discovery of the battery offense, a decision was made to remove him from a caregiver position pending resolution of his request for an exemption. With a birth date of January 21, 1960, Petitioner was 20 years of age at the time of his first offense and 21 years of age when he last committed a criminal offense. Several supervisors of Petitioner testified that he was at all times a caring and diligent worker. Those supervisors included Karen Alford (“He was good.”); Freddie Culver (described Mr. Jackson as showing a lot of care and kindness); and Helen Conrad (“Excellent”). The parties stipulated that Julia Thomas and Barry Moore would testify to similar conclusion and opinions as to the quality of Petitioner's employment. Petitioner’s performance appraisals were at least satisfactory.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner an exemption from disqualification. DONE AND ENTERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2002.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Because of a "gut feeling that something was wrong" when he was not hired, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, filed a complaint alleging that Respondent, Department of Children and Family Services (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took over twenty months to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries biologist," "fisheries technician," and "equal opportunity employment counselor." Petitioner then apparently retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). His current employment is not of record in this case. Although Petitioner says he applied "continuously" for at least fourteen positions with the Department after leaving federal service, only four applications are in issue here. They involve positions 012123, 10081, 60287, and 60288. Position 012123 was a Management Review Specialist in the Department's Tallahassee district office ; position 10081 was an Operations and Management Consultant II at the Northeast Florida State Hospital in Macclenny; position 60287 was an Operations and Management Consultant II in the Department's Daytona Beach district office; and position 60288 was an Operations and Management Consultant II at the Department's central office in Tallahassee. Position 60287 was originally assigned to the Family Safety and Preservation Program in District 12 and required that the applicant have experience in child neglect and foster services. It was first advertised through a Job Opportunity Announcement (JOA) published on December 24, 1996. Because it was a "highly responsible" position that more closely fit within District Administration, the position was later "pulled" from the Family Safety and Preservation Program and transferred to District Administration. On January 8, 1997, Jane Miller (Miller), a black female and at that time a Program Administrator for the Family Safety and Preservation Program, submitted an interoffice memorandum requesting that she be given a 2-step demotion from pay grade 25 to 23, so that she could fill the position. It can be inferred from the evidence that her request for a demotion was due to a legislatively-mandated reorganization in 1997 that eliminated or transferred a number of positions. Because it was in the best interest of the Department, and Miller was fully qualified to assume the position, the Department decided to fill the slot through a demotion rather than from the applicant pool, and Miller's request was granted. After the position was transferred to District Administration, however, she demoted into another position involving day care licensure, rather than 60287. In response to the JOA, Petitioner timely filed his application. On January 14, 1997, he received a letter from the Department which advised that the position was being "filled by an employee who has taken a voluntary demotion with the department to assume this role." Although this ultimately turned out not to be true, when the letter was sent, the Department did in fact intend to fill the position through Miller's demotion, and thus it was an accurate representation at that time. The undersigned rejects the contention that the above letter, without a second letter to applicants explaining what actually occurred later, proves that there was discrimination. As noted above, after the January 14 letter was sent, the position was transferred to District Administration. A short time later, the reorganization of the Department was implemented, and Betsy Lewis (Lewis), a female whose age and race are unknown, filled the slot through a lateral reassignment that became effective on October 27, 1997. Prior to her reassignment, Lewis had held a similar position and was fully qualified. There was no evidence that the Department accepted Miller's demotion, then transferred the position to District Administration, and then laterally reassigned Lewis in order to deny Petitioner employment on account of his age, race, or gender. Position 60288, also an Operations and Management Consultant II, was located at the Department's central office in Tallahassee, Florida. Under current record retention requirements for that office, the Department purges "all records for employment received from individuals seeking employment but [who] were not hired" two years after the application deadline. Because more than two years have gone by since the application deadline, all of the records pertaining to the applicants who sought that position have been purged; therefore, a complete file relating to this position was not available at the final hearing. Position 60288 involved the compilation, analysis, and reporting of substance abuse data for the Department's substance abuse program. After he filed his application, Petitioner was given a telephone interview by Dr. L. E. Stivers, Program Administrator for Policy Integration & Information Systems. Although Petitioner says he had a "congenial interview" with Dr. Stivers, he was not considered because of a lack of proficiency in substance abuse language. Because Petitioner did not believe that knowledge of substance abuse was a prerequisite for a computer-related job in the substance abuse program, he asserted that Dr. Stivers was biased towards him, was "stretching for a reason to eliminate [him]," and used the lack of proficiency in drug abuse language as a pretext for not hiring him. These assertions have been rejected as not being credible. Of the candidates interviewed for the job, only three names were submitted to the Assistant Secretary for Substance Abuse for further consideration. Petitioner was not one of the three. Ultimately, a male (Robert Morrell) whose age and race are unknown, was hired for the job. That individual had direct experience in performing substance abuse data collection in the same department where the position was located, and he was the most qualified candidate. Position 10081, an Operations and Management Consultant II, was assigned to the Northeast Florida State Hospital in Macclenny, Florida. According to the vacancy announcement, the position's duties included "the support, consultation and guidance of the Unit Treatment and Rehabilitation Directors in the development and implementation of policies and procedures in the multi-discipline treatment and rehabilitation of mentally and physically ill residents in the area of Unit Operations." Thus, the position required that the individual have a working knowledge of the treatment of mental health patients and preferably a background in mental health. Petitioner met the minimum qualifications stated in the job announcement document and, along with seven other candidates, was given an interview. All candidates were asked the same questions. Petitioner contended that none of the questions asked were relevant, and most dealt with the "treatment of patients." This is hardly surprising, however, since the facility treats the mentally ill. A contention that the questions were unfair and were framed so as to exclude all "external" candidates has been rejected. The position was ultimately filled by Mary Jane Hartenstein (Hartenstein), a white female who was younger than Petitioner, and who received the highest score of all the applicants. At the time she was hired, Hartenstein served as a Unit Treatment Rehabilitation Director at the facility and was familiar with the treatment of mental health patients. She was the most qualified applicant because of her prior experience. The final position was 012123, a Management Review Specialist in the Tallahassee district office. The position called for familiarity with "planning, information resource planning, legislative budget requests, performance of needs assessment and knowledge of health and human services." John Girvin (Girvin), a white male whose age was the same as Petitioner, was ultimately selected for the job. Girvin had prior experience as a deputy secretary and assistant division director for the Department of Commerce and also served with the Historical Preservation Society. The evidence supports a finding that he was the most qualified person for the job. Notwithstanding the foregoing, Petitioner pointed out that when he had previously submitted his qualifications to his former employer (DOR) in 1996, he received a letter from DOR indicating that DOR "felt" that he qualified for a number of positions within the agency, including a Management Review Specialist. Therefore, Petitioner contended that this affirmation of qualifications by DOR also qualified him for the same type of position with another state agency, including the Department's position 012123. Assuming this to be true, it merely means that Petitioner met the minimum qualifications for such a position; it does not mean that he was the best qualified person for the job. As noted above, a more qualified individual was selected for the position. Petitioner further contended that nothing in the basic job announcement for position 10081 indicated that skills in "psychosocial" services were needed. That document, however, merely identified the minimum qualifications, and further details concerning the specific job requirements could have been obtained from the hospital's human resources office. Petitioner has also contended that existing employees of an agency have an advantage over "external" candidates since they can more easily obtain direct experience in the desired area as well as information about "vital criteria" for the job. Even if this is true, it does not equate to a discriminatory practice within the meaning of the law. Moreover, the evidence here shows that the most qualified person was hired in each instance. Finally, Petitioner asserts that the Department violated various Department of Management Services rules in the hiring process, such as failing to timely notify him after Wilson did not actually demote into position 60287, and ignoring the generic minimum qualifications which apply to similar positions in all agencies. The latter claim has been rejected, but even if a technical error occurred, such as the Department failing to send a second letter regarding position 60287, such action was harmless and was not taken with discriminatory animus. In summary, there was no credible evidence that the Department "chang[ed] classifications and var[ied] conditions of employment" in an effort to deny Petitioner employment, or that the Department's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decisions were grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the Department in its actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 13th day of April, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Kevin E. Hyde, Esquire Natasha A. Garrison, Esquire Foley & Lardner 200 Laura Street Jacksonville, Florida 32202 Daniel T. Medved, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether the Petitioner was discriminated against based upon his race when he was disciplined for absenting his post contrary to Chapter 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Willie B. Smith, is an African-American male. He is now and was at the time of the incidents involved in his complaint employed by the Respondent, Department of Children and Family Services, at Florida State Hospital as a guard in the forensic (prison) unit. The Petitioner is part of a bargaining unit that is represented by the Florida Police Benevolent Association. On November 15, 2001, at approximately 1:05 a.m., the Petitioner contacted his Shift Supervisor, Jimmie Williams, an African-American male, and requested to leave his assigned post in Tower B and go to Unit 3 at the hospital and pick up food from a fish fry. Williams approved the Petitioner’s leaving his post to get the food and to return to his post after getting the food. At 2:35 a.m., Williams was contacted on the radio by the Control Room Officer, Johnny Smith, who indicated that the Petitioner wanted to talk to him on the telephone. Williams provided Johnny Smith a telephone number at which the Petitioner could reach him, and the Petitioner called Williams a short time later. The Petitioner informed Williams that he had spilled diesel fuel on his uniform and asked permission to take the remainder of the shift off. Williams asked the Petitioner where he was, surprised that the Petitioner was some place other than at his post. The Petitioner refused to identify where he was, and Williams denied his request for leave. Realizing that the Petitioner was not at his post, Williams proceeded to Tower B and manned that post until the Petitioner arrived there at 3:04 a.m. When he arrived at Tower B, Williams asked the Petitioner where he had been, and the Petitioner stated he had been at the Florida State Hospital gas station. Williams had checked the Florida State Hospital gas station looking for the Petitioner and was aware that the Petitioner had not been there. At this point, angry words were exchanged and the Petitioner admitted that he had not been at the gas station. Williams wrote up an incident report that initiated a formal investigation into the Petitioner's having absented himself from his post while on duty without proper authorization. The Petitioner was advised of the investigation, and he requested that the PBA represent him in the investigation pursuant to the provisions of the collective bargaining agreement. At the Petitioner's specific request, Steve Mears, from the Tallahassee Office of the PBA, represented the Petitioner in this matter. During the course of a break in a meeting held with regard to the investigation, the Petitioner mentioned to Mears voluntarily changing duty stations, and Mears raised this request with representatives of the Respondent, including William T. Parker, now Chief of Security. As a result, the Petitioner was re-assigned from the forensic unit to the central forensic unit because this was the only place where there was a vacancy. His shift and days off remained the same, which did not constitute a transfer under the terms of the contract. Such a re-assignment was not subject to being grieved under the terms of the bargaining agreement. See testimony of Parker and Mears. The Petitioner's days off changed from the first and third weeks of the month to the second and fourth weeks of the month, but the days of the week remained the same. Although the evidence supports a finding that this move was voluntary, it is not material because, under terms of the bargaining agreement, such a re-assignment was not subject to a grievance. The investigation established sufficient cause for the Respondent to issue an official letter of reprimand to the Petitioner for absenting his post without permission. Pursuant to internal policy, the Petitioner's new supervisor, Roger Howell, who had had nothing to do with the incident upon which the reprimand was based, issued the letter. See testimony of Howell and Bryant. The Respondent introduced the Employee's Handbook, dated Mary 29, 2001, which the Petitioner had received. The book contains the Standards for Disciplinary Action, which include absences without authorized leave. This provision provides that for the first occurrence of Absence Without Authorized Leave, the section under which the Petitioner was disciplined, the violator can be given a range of punishments from a written reprimand to dismissal. See testimony of Bryant. Evidence was received that these penalties have been imposed upon employees of the Respondent without regard to race or gender. See testimony of Williams. At the hearing, the Petitioner expressed his concern that his reprimand had been signed by someone who had no knowledge of the incident, and stated that he felt he had permission to leave his post. He also introduced a doctor's excuse (Petitioner's Exhibit 2); however, the date of the doctor's visit did not relate to the date of the incident. The supervisor who signed the letter of reprimand and the personnel specialist who prepared the letter testified that it was policy for an employee's supervisor to sign the reprimand, even if he or she personally did not have knowledge of the events. Mr. Williams testified regarding his authorization to the Petitioner to leave his post to get food. He was very credible. He expected the Petitioner, in accordance with regular procedure, to leave his post, get his food, and return to the post immediately, being absent from the Tower for approximately 30 minutes. This was the normal process for getting food during a shift. The Petitioner was gone for two hours, and gone for over an hour without Williams being aware that Tower B was not covered. There was significant evidence introduced that none of the actions complained of by the Petitioner were motivated by racial animus. The disciplinary action taken by the Petitioner was at the lower end of penalties that could have been imposed. The complainant, Williams, was also an African-American. The PBA representative, whom the Petitioner specifically requested over the regular one at the hospital, testified regarding the events leading up to the Petitioner's re-assignment. The Petitioner sought a change of assignment and voluntarily accepted the change. See the testimony of Mears and Parker. There was no evidence adduced to show pretext.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 31st day of March 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 31st day of March, 2004. COPIES FURNISHED: Anita L. Davis, Qualified Representative 708 Brag Drive Tallahassee, Florida 32305 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner abandoned her position of employment with Respondent and resigned from the career service.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was employed the Department of Health and Rehabilitative Services (DHRS) at South Florida State Hospital (SFSH) as a Human Services Worker I, a career service position. Petitioner was absent without authorized leave or explanation on February 6, 7, 8, 9, 10, and 13, 1991. Petitioner was not at work on February 11 and 12, 1991, but those were scheduled days off. On February 13, 1991, David A. Sofferin, Hospital Administrator at SFSH, notified Petitioner by letter that DHRS had no choice but "... to consider you to have abandoned your Human Services Worker I position and resigned from the State of Florida Career Service at South Florida State Hospital. ..." This letter also advised Petitioner of her right to challenge this action. Petitioner wrote DHRS a letter which was received by DHRS on February 25, 1991. In this letter Petitioner admitted that she had violated the personnel rules and asked for a second chance. Petitioner's letter stated that she had been abducted by a boyfriend on February 11, 1990 (sic), 1/ and taken to Bradenton. The letter did not attempt to explain her absences on February 6, 7, 8, 9, and 10. 1991. Petitioner was provided a copy of DHRS' Employee Handbook on April 20, 1990. Petitioner had been previously advised of Respondent's attendance policies and she had been previously reprimanded for failing to adhere to those policies. The following is found on page 13 of the Employee Handbook under the paragraph entitled "Absences": If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absences without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. (Emphasis added.) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part, as follows: An employee who is without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service . ... . The foregoing rule creates a rebuttable presumption. DHRS has established that Petitioner was absent without authorized leave so that she is rebuttably presumed to have abandoned her position of employment and to have resigned from the career service. Petitioner has failed to rebut that presumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner, Carol Wheeler, has abandoned her position of employment with the Department of Health and Rehabilitative Services and which further finds that she has resigned from the career service. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of November, 1991. CLAUDE B. ARRINGTON 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 13th day of November, 1991.
