The Issue The issue in this case is whether the Respondent terminated Petitioner's employment on the basis of a perceived disability, in violation of Section 760.10, Florida Statutes (2004),2 the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Seiden's Relevant Employment. Petitioner Jane Seiden is an individual who was employed by the Florida Department of Corrections at Broward Correctional Institute (hereinafter referred to as "BCI") from December 1988 until the end of March 1999 as a licensed practical nurse. From April 1, 1999, until October 7, 2001, Ms. Seiden continued to work at BCI, but was employed by a private business, Prison Health Services. On October 8, 2001, Respondent Wexford Health Sources, Inc. (hereinafter referred to as "Wexford") took over responsibility for providing medical services at BCI. Ms. Seiden became an employee of Wexford as of that date, after having received a letter dated June 20, 2001, signed by Wendy Mildner, as Wexford's Director of Human Resources/Risk Management, offering her employment with Wexford effective October 8th. Ms. Seiden accepted the offer of employment on June 25, 2001. Wexford is a provider of health care services to correctional facilities, including BCI. Throughout Ms. Seiden's employment at BCI, she received excellent work performance reviews. Wexford's Leave Policies. Wexford's policies concerning employee "Family and Medical Leave" at the time of Ms. Seiden's initial employment with Wexford were contained in the Wexford Health Sources, Inc. Employee Handbook (Respondent's Exhibit 9) (hereinafter referred to as the "Employee Handbook"). The Family and Medical Leave policy was, in relevant part, as follows: Employees who are eligible for Family and Medical Leave may take up to 12 weeks of unpaid, job protected leave. Employees are eligible if they have worked for at least one year, and for 1,256 hours over the previous 12 months. Reasons for taking unpaid leave are: . . . . ? for a serious health condition that makes the employee unable to perform the employee's job. . . . . The Wexford Employee Handbook, Revised 09/01/04 (Petitioner's Exhibit 9) (hereinafter referred to as the "Revised Employee Handbook"), established policies governing "Time Off" in Section 5. Pursuant to Policy 5.3, all employees are allowed to apply for a leave of absence for medical reasons. The period of the absence is limited, however, to 12 weeks, consistent with the Family and Medical Leave Act (hereinafter referred to as the "FMLA"), unless the employee is eligible for "income replacement benefits," for example for a short-term disability pursuant to Section 4.5, which provides the following: Wexford provides some income protection for employees who are unable to work for an extended period of time due to illness or injury through its Short-Term Disability Leave (STD) insurance program. You are eligible for STD benefits if: You Have completed one year of continuous service You work a minimum of 30 hours per week and are covered by health insurance. Eligible employees are entitled to short- term leave for up to 26 weeks in a rolling 12-month period. The rolling 12-month period is calculated by counting backwards from the date of the leave request. For example, if you request a leave in November, the rolling 12-month period is from November of the previous year to November of the current year. You will be required to provide a medical doctor's certificate to qualify for short- term disability leave. STD runs concurrent with the Family and Medical Leave Act (FMLA). Your weekly benefit is 50% of your weekly salary to a maximum of $300, whichever is less. . . . . Thus, Wexford policies, at the times relevant, allowed eligible employees to take up to 12 weeks of leave pursuant to the FMLA and 26 weeks of what Wexford termed "short-term disability" leave, the latter to run concurrently with the 12 weeks of family medical leave. Policy 5.3 describes Wexford's policy concerning "When Return to Work is Not Possible": If following 26 weeks of medical leave you remain unable to return to work your employment will be terminated. If you are able to work at a later point in time, you are welcome to reapply for employment. Your past history and work background will be taken into consideration for reemployment purposes. Consistent with this policy, Wexford does not grant extensions of the 26 week, short-term disability maximum absence. Also consistent with the policy, Wexford treats an employee as terminated at the end of the 26 week short-term disability absence if the employee does not return to work. Policies 5.3 and 5.4 provide the procedural requirements for applying for a medical leave of absence (forms to file, providing health care professional certifications of illness, etc.) and other procedures and the conditions for which FMLA leave will be granted. Of relevance to this matter, one of the conditions for which FMLA leave will be granted is: "a serious health condition that makes you unable to perform the essential functions of your job." Policy 5.4. Policy 5.7 of the Revised Employee Handbook is the established procedure for "Personal Leave of Absence - Unpaid." That Policy provides, in pertinent part" With the approval of management and the Vice President of Human Resources, you may be granted an unpaid personal leave for unusual, unavoidable situations requiring an absence from work. The unpaid personal leave is for a pre-determined period of time. Unpaid personal leaves of absence are awarded at the discretion of management and cannot be presumed or guaranteed. You must use all available PTO [personal time off] before requesting personal leave. . . . As reasonably interpreted by Wexford, the Unpaid Personal Leave of Absence policy is not used or intended for use as a method of taking off time in addition to the time off allowed by Wexford's policies governing FMLA leave and short- term disability leave. Ms. Seiden's Absence from Wexford. Ms. Seiden, who acknowledged receipt of, and responsibility for reading, the Employee Handbook at the time she was employed by Wexford, was diagnosed with kidney carcinoma in 2004. As a result of her illness she did not rest comfortably and, therefore, woke up during the night, she could not sit for long periods of time, and, although not fully developed in the record, she required hospitalization. As a result of her illness, Ms. Seiden was, due to a "serious health condition," "unable to perform the essential functions of [her] job." As a consequence, the last day that Ms. Seiden worked at BCI was April 26, 2004. Ms. Seiden was provided a Memorandum dated May 6, 2004, from Tara M. DeVenzio, Risk Management/Leave Compliance Assistant (hereinafter referred to as the "May 6th Memorandum"). The May 6th Memorandum, which Ms. Seiden read, states that Wexford had been notified that she was requesting a leave of absence and is "in need of Family Medical Leave (FML) and Short Term Disability (STD) forms." Those forms were included with the May 6th Memorandum. The May 6th Memorandum goes on to explain the procedures Ms. Seiden was required to follow in making her request for leave and the extent of leave available to her. The May 6th Memorandum also informed Ms. Seiden that, consistent with Wexford's written leave policies, the "[m]aximum amount of time allotted for Short Term Disability is 26-weeks on a rolling twelve (12) month period . . ." and that "[i]f you do not return when your leave has ended, you will be considered to have voluntarily terminated employment." Consistent with the May 6th Memorandum and the policies of the Employee Handbook, Ms. Seiden completed the forms required by Wexford to apply for FMLA and short-term disability leave to begin in April 2004, and end in October 2004. Ms. Seiden executed a Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Initial Leave Request") on May 10, 2004. (Petitioner's Exhibit 14). On the Initial Leave Request Ms. Seiden checked a box which indicated her reason for requesting leave was "Serious health condition that makes me, the employee, unable to perform the functions of my position." A space on the Initial Leave Request for "Date Leave of Absence to End" was left blank. Also provided to Wexford with the Initial Leave Request, was a Certification of Health Care Provider (hereinafter referred to as the "Certification"), as required by Wexford's leave policies. The Certification was from Nine J. Pearlmutter, M.D. Dr. Pearlmutter reported on the Certification that Ms. Seiden's "serious health condition" was a "renal mass" and that hospitalization was necessary. Dr. Pearlmutter also stated "yes at this time" in response to the following question on the Certification: If medical leave is required for the employee's absence from work because of the employee's own condition (including absences due to pregnancy or a chronic condition), is the employee unable to perform work of any kind? Ms. Seiden's Initial Leave Request was approved and she was provided a Memorandum dated May 25, 2004, from Ms. DeVenzio, memoralizing the approval. Ms. DeVenzio informed Ms. Seiden that her leave was approved "to commence on April 26, 2004." Ms. Seiden's 26-week period of leave began on April 26, 2004, ended October 25, 2004. Throughout this period, Ms. Seiden remained absent from BCI. On October 22, 2004, a Friday, Ms. Seiden telephoned Ellie Zeigler a Human Resources Generalist for Wexford, and spoke to her about the pending end of her approved leave. Ms. Seiden informed Ms. Zeigler that she wanted to request an extension of her leave, which Ms. Zeigler had not authority to grant or deny. Ms. Zeigler, who had not authority to approve or disapprove the request for an extension, told Ms. Seiden that she would send her forms, which she would have to file in order to request additional leave. Ms. Zeigler also explained to Ms. Seiden that the maximum leave available to her had been exhausted, and that, because her physician had not released her for return to work, her employment with Wexford would be considered terminated if she did not return to work the following Monday. Ms. Zeigler also told Ms. Seiden that a letter to that effect would be sent to her. Ms. Zeigler, as promised, sent Ms. Seiden a Wexford Family / Medical Leave of Absence Request. On Wednesday, October 27, 2004, two days after Ms. Zeigler's approved absence ended, Ms. Seiden executed the Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Second Leave Request") which Ms. Zeigler provided to her. Again, she checked as the "Reason for Leave" the box indicating "Serious health condition that makes me, the employee, unable to perform the functions of my position" and the "Date Leave of Absence to End" space was left blank. A second Certification of Health Care Provider form (hereinafter referred to as the "Second Certification"), executed by Dr. Pearlmutter was provided with the Second Leave Request. Dr. Pearlmutter listed, among other things, carcinoma of the kidney as Ms. Seiden's illness. While Dr. Pearlmutter indicates a "2 month" duration for one of the listed conditions, she did not indicate when Ms. Seiden would be able to return to work at the end of two months. Again, Dr. Pearlmutter answered "yes" to the question quoted in Finding of fact 18. The Second Leave Request, which was sent by certified mail on Thursday, October 28, 2004, three days after the end of Ms. Seiden's approved leave, was received by Wexford on Monday, November 1, 2004, seven days after the end of her approved leave. The Termination of Ms. Seiden's Employment. On October 25, 2004, the last day of Ms. Seiden's approved absence, Arthur Victor, Wexford's Human Resources Manager, and Ms. Zeigler exchanged e-mails concerning Ms. Seiden. In response to an inquiry from Mr. Victor, Ms. Zeigler informed Mr. Victor that October 25, 2004, was the last day of Ms. Seiden's approved leave. In response to Ms. Zeigler's information, Mr. Victor wrote "[t]hen there is no extension. Six months is up 10/30/04. You need to talk to Ron Miller re. termination." This decision was consistent with Wexford’s written policies and was based upon Ms. Seiden's failure to return to work on October 25, 2004. Given Mr. Victor's statement that "there is no extension," it is found that Mr. Victor had been informed that Ms. Seiden intended to request an extension of her approved absence. It is also found that Wexford was aware of the reason for Ms. Seiden's absence: kidney cancer. Finally, it is found that, by terminating Ms. Seiden's employment, Wexford denied the requested extension. After receiving Mr. Victor's e-mail indicating that Ms. Seiden would be terminated, Ms. Zeigler wrote to Ron Miler and Judy Choate, Ms. Seiden's supervisor, and informed them of the following: I received a call from Jane last friday [sic] requesting an extension for her fmla. Jane's 26 weeks for her std/fmla has expired as of today (10/25/04). I just spoke with Jane and inform [sic] her that her Dr. has not released her for full duty and that she was exhausted all of her authorized fmla/std leave and that Wexford considers her to have resigned from her position. I told Jane that Judy will be sending her a letter confirming her of the above. To Ms. Choate, Ms. Zeigler continued: The letter should be sent from you. Attached you will find a copy of the letter that Art has drafted for your [sic] to send to Jane regarding her std/fmla. . . . . Also, please complete the "Termination Processing From" and forward it to the Pittsburgh office so I can term her out of the system. The draft termination letter provided to Ms. Choate and dated October 26, 2004, was signed by Ms. Choate and sent to Ms. Seiden. The letter (hereinafter referred to as the "Termination Letter") states, in part: As you are aware, you have exhausted all authorized Family and Medical/Short Term Disability leave. You were to return to work on October 25, 2004. Since you have not returned, Wexford Health Sources, Inc. considers you to have resigned your position as a Licensed practical [sic] Nurse, effective October 25, 2004. If you are in disagreement with this letter, please contact me immediately but no later than 4:00pm, on 10/28/02004 at If it is determined that there were extenuating circumstances for the absence and failure to notify, you may be considered for reinstatement. . . . . Ms. Seiden received the Termination Letter on November 3, 2004. She did not contact Ms. Choate about the matter. Although she had been informed on October 22, 2004, that she would be terminated by Wexford during her telephone conversation with Ms. Zeigler, November 3, 2004, constitutes the first official notice of Wexford's adverse action which Ms. Seiden received. The effective date of Ms. Seiden's termination was October 25, 2004. The Reason for Ms. Seiden's Termination. Ms. Seiden was terminated because, consistent with written Wexford policies which Ms. Seiden had been informed of on more than one occasion, Ms. Seiden had exhausted the maximum family medical leave and short-term disability leave she was authorized to take. Having used the maximum authorized medical leave, Ms. Seiden was still unable to perform any of the functions and duties required of her position. Due to her illness, she was simply unable to perform any work at all during the period relevant to this case, a fact Wexford was aware of. While she testified at hearing that she had been told by her physician that she would be able to return to work in January 2005, that testimony constitutes hearsay upon which a finding of fact will not be made. More significantly, Wexford was never informed by Ms. Seiden or her physician that she would be able to work. Wexford's policies gave Ms. Seiden leave in excess of the 12 weeks required by the FMLA. Wexford was not required to do more. Ms. Seiden's Claim of Discrimination. Ms. Seiden filed her Employment Complaint of Discrimination with the FCHR on November 30, 2005, or 392 days after being informed that she had been terminated and 401 days after her actual October 25, 2004, termination date. After a Determination: No Cause was issued by the FCHR, Ms. Seiden filed a Petition for Relief in which she alleged that Wexford had "violated the Florida Civil Rights Act of 1992 by terminating [her] based upon a perceived disability." No allegation of failure to provide an accommodation for her disability was alleged in the Petition. Summary. The evidence proved that Ms. Seiden failed to file her complaint of discrimination with the FCHR within 365 days of the discriminatory act. She offered no explanation as to why she did not do so. Ms. Seiden failed to establish a prima facie case of unlawful employment discrimination. While she did prove that she suffered from kidney cancer and that, as a result of her illness she was unable to perform the duties of her position, which may constitute a disability, she ultimately failed to prove that she was a "qualified individual" with or without an accommodation. From April 2004 through October 22, 2004, when she orally informed Wexford that she desired an extension of leave, her termination from employment on October 25, 2004, and on November 1, 2004, when her formal request for an extension of leave was received by Wexford, Ms. Seiden, along with her physician, reported to Wexford that she was unable to carry out her employment duties. Ms. Seiden also failed to prove that she was terminated because of her illness, on the basis of a perceived disability. Finally, Wexford proved a non-pretextual, non- discriminatory reason for terminating Ms. Seiden's employment.
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 the Petition for Relief filed by Jane Seiden. DONE AND ENTERED this 18th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 18th day of January, 2007.
The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. 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 8th day of November, 2001.
Findings Of Fact Donald C. Geeck was employed the City of Clearwater Utilities Department as a Customer Service Supervisor on September 26, 1983, and had been so employed since October, 1981. Prior thereto he was employed by the Clearwater Police Department. On September 26, 1983, around 8:00 a.m. Geeck called the Utilities office to report he had overslept and would be in shortly. His workday started around 8:30 a.m. and he would have been a few minutes late. When he had not arrived by 10:00 a.m., Tamera Denman, a Customer Service Representative supervised by Geeck, called Geeck to find out if he had gone back to sleep. Geeck answered the phone and told Denman he was not feeling well and would probably not be in. Around 12:15 p.m. Geeck called the office to advise he would not be in that day (Monday) and maybe not on Tuesday, September 27, 1983. Fred Lewis is Assistant Account Supervisor in the Clearwater Utilities Department and the immediate supervisor of Geeck. Lewis has been employed by the City for some 28 years. Lewis was not satisfied with Geeck's performance of duty since the latter was transferred to the Utilities Department and had counseled Geeck several times. At Geeck's annual evaluation defects in Oeeck's performance were pointed out by Lewis in a meeting of Geeck, Lewis, and Mehring, Utilities Accounts Supervisor. Lewis smelled alcohol on Geeck's breath on several occasions in the office and this, plus frequent use of sick leave, led Lewis to conclude Geeck had a drinking problem. Robert Brumback is Assistant Director, Utilities Department, Clearwater, and the supervisor of Mehring. He had smelled alcohol on Geeck's breath once in the office and had cautioned Geeck that Customer Service Representatives had to be careful of their appearance, as they were in daily contact with customers. When Lewis returned from lunch around 12:30 p.m., September 26, he was advised of Geeck's recent call that he would not be in that day, and maybe not the following day. Lewis was aware of the other phone calls that had been made that morning. Around 12:45 p.m. Lewis dialed Geeck's number to inquire about his condition but received no answer after waiting for the phone to ring seven times. Shortly thereafter Lewis and Brumback went out on a high bill complaint and, before leaving, Lewis informed Brumback of Geeck's absence; of the phone calls during which Geeck stated he wasn't feeling well and would not come to work that day and maybe not the next day; of his phone call to Geeck's residence and no answer; of the fact that similar incidents had occurred in the past; and that he suspected Geeck's claim of sickness was spurious and the result of Geeck's drinking problem. He requested Brumback stop by the Eagle's Club, a private club frequented by Geeck, on their return to the office. Brumback agreed, and in route back to the office they pulled into the Eagle's Club parking lot where Geeck's car was seen. Brumback and Lewis went to the door but could not get in without a member's card. After a short wait a member came out and Lewis stepped into the doorway, from where he saw Geeck at the bar. Geeck also saw Lewis and came to the door. He then saw Brumback and came outside. When Geeck approached Brumback, he said words to the effect "I must be in a lot of trouble. I'm supposed to be home sick and you found me here drinking and rolling quarters." When asked if he had a drinking problem, Geeck replied "I guess I do." Brumback told Geeck to report to his office the following day. Brumback and Lewis then departed and returned to the office. Geeck's version of the events of September 26 coincide with those above-recited; however, Geeck contends he mentioned he was not feeling well only on the phone call made to him at 10:00 a.m. by Denman. When he called in at 8:00 a.m., he intended to come to work but went back to sleep until he was awakened by Denman's phone call at 10:00 a.m. Shortly after he called Lewis' office at 12:30 p.m., he received a call from the manager of the Eagle's Club that he needed the checkbook and some change. Geeck is secretary of the Eagle's Club, had the checkbook and the only key to the vending machine. Geeck drove the five minutes from his home to the Eagle's Club, took checks to the manager, and opened the vending machines. When he sat at the bar to roll quarters, the bartender placed a drink in front of him. He had taken only a couple of sips when he saw Lewis at the door and came out and then saw Brumback. He definitely recalled saying I guess you caught me; I'm supposed to be home sick, or words to that effect. Geeck further testified that on the evening of September 25 (Sunday) he had called Bingo but did not feel well, left the Bingo hall early, and returned home around 8:30 p.m. No explanation was offered why, if he went to bed at 8:30 p.m., he would oversleep the following morning and go back to sleep after calling the office to advise he had overslept and would be in shortly. Respondent presented evidence that Lewis was unsatisfied with Geeck's performance of duty and with his suspected drinking problem and wanted to get rid of Geeck as an employee under his direct supervision. However, the evidence was unrebutted that Brumback was the one who made the determination to, and did, recommend Respondent's dismissal. Brumback testified that when Geeck called in (or was called) and stated he was not feeling well and would not come to work on September 26, he considered Geeck to be on sick leave. When he subsequently found Geeck at the Eagle's Club working and having a drink, he concluded that Geeck had falsified the report of his sickness and thereby knowingly made a false claim or misrepresentation in order to obtain sickness benefits. Geeck was the supervisor of eight Customer Service Representatives and, as supervisor, Brumback expected Geeck to set a good example and not falsify a report. For this reason he, and he alone, recommended dismissal. The policy of the Utilities Department is to consider people on sick leave when they call in to say they are sick, and filling out the paperwork to document this time is accomplished after the employee returns to work. In Geeck's situation, he had neither sick leave nor annual leave remaining to which he could charge his absence on September 26. That day would, perforce, be a day for which he could not be paid. His absence would be excusable if he was sick.
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
Findings Of Fact Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Petitioner should be treated as having abandoned his employment with the Respondent?
Findings Of Fact The Petitioner was a Career Service employee with the Respondent. The Petitioner received a copy of an Employee Handbook upon his employment with the Respondent. The Handbook informed the Petitioner of the rules governing absences from work, including the rule providing that an employee will be treated as having abandoned his position if absent for 3 days without authorized leave. The Petitioner was employed as an Investigator in the Child Support Enforcement Office of the Respondent in Inverness, Florida. The Petitioner's immediate supervisor was Shirley Barker. In June, 1986, the Petitioner suffered a seizure. The Petitioner subsequently underwent surgery for the removal of a brain tumor in June, 1986. The Petitioner returned to work following his surgery on approximately September 15, 1986. Ms. Barker determined that the Petitioner's performance was not up to standard and discussed the need for additional leave with the Petitioner. The Petitioner's physician agreed that it would be beneficial for the Petitioner to have additional time to recover from his surgery and recommended an additional six months leave of absence. The Petitioner signed a Report of Personnel Action indicating that he was going to take leave without pay. The Petitioner's leave was effective October 13, 1986, "for a period of 6 months with return pending medical reevaluation." This leave of absence ended on April 13, 1987. During the Petitioner's 6 months leave of absence he was given a monthly medical evaluation by his physician. In December, 1986, the Petitioner met with Ms. Barker and told her that he planned on returning to his position with the Respondent when his physician approved his return. The Petitioner did not, however, tell Ms. Barker when he would return or request an extension of his 6 months leave of absence. In March, 1987, the Petitioner met with Barbara Jordan, a supervisor in the Child Support Enforcement Office of the Respondent. This was the Petitioner's only meeting during 1987 with any employee of the Respondent. During this meeting the Petitioner did not indicate when he would return to work or request an extension of his 6 months leave of absence. By letter dated April 16, 1987, Herbert R. Hildreth, Sr., Human Services Program Manager, and Ms. Barker's supervisor, informed the Petitioner that his 6 months leave of absence had expired. The Petitioner was also informed that he should advise the Respondent by April 26, 1987, of his intentions concerning his employment with the Respondent. Mr. Hildreth's letter of April 16, 1987, was received by the Respondent on April 21, 1987. The Petitioner did not respond to Mr. Hildreth's letter of April 16, 1987, prior to April 26, 1987. By letter dated April 30, 1987, Judith Mesot, Deputy District Administrator of the Respondent, informed the Petitioner that the Respondent considered the Petitioner to have abandoned his Career Service position with the Respondent because the Petitioner had been on unauthorized leave since April 10, 1987. By letter dated May 27, 1987, the Petitioner informed the Respondent that his physician had informed him during a May 20, 1987, appointment that he could return to work on a part-time basis. At no time between October 13, 1986, and April 13, 1987, did the Petitioner inform the Respondent when he intended to return to work or request an extension of his 6 months leave of absence. The first time that the Petitioner informed the Respondent that he was ready to return to work was in his May 27, 1987, letter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, John Blackford, has abandoned his position with the Respondent, the Department of Health and Rehabilitative Services. DONE AND ORDERED this 15th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2617 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 and 4 To the extent that these proposed facts were proved by the evidence, see finding of fact number 3. 5 and 6 4. 7 5. 8 Hereby accepted. 9 and 10 6. 11 7. 12 Although the Petitioner testified that he met with Ms. Barker within one day after his monthly examina- tions, the weight of the evidence failed to support this testimony. See 8. Even if the Petitioner had met with Ms. Barker as often as the Petitioner indicated, the Petitioner still did not return to work or obtain approval of his absence after April 13, 1987. 13 and 14 To the extent that these proposed facts were proved by the evidence and are relevant, see finding of fact number 9. Most of these proposed findings of fact are not relevant, however. 15 10 and 12. 16 13. Respondent's Proposed Findings of Fact 1 1. 2 6. 3 10 and 11. 4 Hereby accepted. 5 11. 6 12. 7 13. COPIES FURNISHED: Don Royston, Esquire Department of Health and Rehabilitative Services District III Building H 1000 Northeast 16th Avenue Gainesville, Florida 32609 John Blackford 3199 East Quail Court Inverness, Florida 32652 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent discriminated against the Petitioner contrary to statute on the basis of Petitioner's disability.
Findings Of Fact Petitioner was diagnosed with cancer in December of 2002, and was on sick leave off and on from the time of her diagnosis until the first part of 2004. Later, after surgery, the Petitioner was on extended leave while she recovered from surgery and later from chemotherapy. In June of 2003, Petitioner was rapidly approaching the end of her available leave, but, more significantly, the end of the leave required to be granted under the Family Medical Leave Act (FMLA). This situation resulted in correspondence between Petitioner and the Department about extension of her leave and her return to work. On June 17, 2003, Jeff Carr, Human Resources Manager for the Department, sent a letter to Petitioner in connection with her medical leave status. This letter advised Petitioner that an agreed-upon extension of leave would cover Petitioner until July 4, 2003. As the latest physician's statement submitted by Petitioner indicated that Petitioner was unable to perform the essential functions of her job, the letter from Mr. Carr advised Petitioner of options available to her: 1) a return to work on July 5, 2003, if she was released by her physician as able to perform the essential functions of her job; 2) resignation if she was unable to perform the essential functions of her job; 3) regular or disability retirement. If Petitioner did not choose one of the three options, she was advised she would be terminated. On June 23, 2003, Petitioner wrote to Beth Englander, District Administrator, requesting additional leave in accordance with her doctor's latest evaluation. A copy of a note from Petitioner's oncologist was attached which stated that Petitioner would need to be off at least six to eight weeks. In addition, Petitioner noted that following completion of chemotherapy she would need additional surgery and would need to make additional requests for leave. Petitioner e-mailed Ms. Englander on June 24, 2003, and Ms. Englander replied that same day. The reply again advised Petitioner of her three options to avoid termination for inability to perform her job. After having been twice advised of her options, Petitioner wrote Mr. Carr on June 27, 2003, advising that she would not finish her chemotherapy treatment until approximately September 1, 2003. However, no estimate was given for Petitioner's medical release to return to work following the additional surgery Petitioner said she would need in her letter to Ms. Englander of June 23, 2003. In her letter of June 27, 2003, Petitioner requested additional leave as what she claimed to be a reasonable accommodation under the Americans With Disabilities Act (ADA). Petitioner also said she wanted to work at home in lieu of leave. However, Petitioner provided no doctor's statement to contradict the one she submitted saying that she would be unable to work for six to eight weeks. On July 6, 203, Petitioner wrote Mr. Carr that she was accepting the alternative of retirement. In this letter, Petitioner again stated that she was not finished with treatment and would need additional time to complete the treatment. At the hearing, Petitioner admitted that she was unable to inspect daycare facilities to conduct the inspections required as an essential function of her position. In addition to the regular inspections, initial licensing and relicensing inspections, day care licensing counselors also have to make inspection in response to complaints received by the Department. Petitioner said that, as an accommodation, she wanted to be relieved from conducting inspections and be permitted to process the inspection reports prepared by other counselors and other paperwork. Although Petitioner contended at the hearing that she might have been able to work part-time, she admitted that after submitting the statement that she could not return to work for at least six to eight more weeks she had not gone back to her doctor to ask him to clear her for part-time work. Petitioner also speculated that she could have performed inspections on a part-time basis if she was provided with appropriate protective equipment and a mask. Petitioner stated her desire and request for more time off was because of fatigue. She did not request to work part-time, or protective devices as an accommodation at any time before she chose the option of retirement. Petitioner instituted an action before PERC contending that she was forced to either resign or retire in retaliation for her making of a complaint to Department's inspector general. That action resulted in a recommended order by the PERC hearing officer on April 21, 2004, that recommended that PERC dismiss Petitioner's claim. In that recommended order the hearing officer found as fact that: On June 23, 2003, Welch (Petitioner) sent a letter to District 13 Administrator Beth Englander, which included a doctor's note indicating she needed six to eight more weeks of leave. Englander responded to Welch and told her that, because her leave was exhausted and because of the operational needs of her unit, the Agency would not extend the leave. On June 27, Welch replied to Carr's June 17 letter and asked for accommodation under the Americans With Disabilities Act (ADA). The Agency did not specifically respond to this request. However, Welch was not entitled to ADA leave because she could not perform the essential functions of her job in June when she made her request. The full PERC in a final order of May 11, 2004, adopted the recommended order of the hearing officer, including this finding of fact. Petitioner had not been released by her doctor to return to work and perform her duties at the time she chose retirement in July 2003, and admitted that she was not able to come to work at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing Petitioner's charge of discrimination. DONE AND ENTERED this 25th day of May, 2005, 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 25th day of May, 2005. COPIES FURNISHED: Melody Welch 34548 Oak Avenue Leesburg, Florida 34788 Carolyn Dudley, Esquire Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 32399-9070 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 At issue herein is whether or not the Petitioner's suspension of Respondent on March 6, 1979, 1/ from his employment duties without pay based on conduct set forth hereinafter in detail, was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence introduced, the arguments of counsel and the entire record compiled herein the following relevant facts are found. Otha Reddick, Respondent, was employed by the Leon County School Board, Petitioner, as a Systems Analyst during November of 1974, a position he held until his suspension on March 6. His rate of pay at the time of his suspension was $1,326.00 per month. On April 11, Petitioner's superintendent, Dr. N.E. (Ed) Fenn, filed a Notice of Charges against Respondent. At its meeting of April 17, the School Board referred the matter to the Division of Administrative Hearings for a formal hearing pursuant to Section 120.57(1)(a), Florida Statutes. The Notice of Charges alleged in pertinent part that: Respondent, Otha Reddick, was absent from work for the period February 15 through March 2, during which period he willfully neglected his duties at the Data Processing Center. On or about March 1, Respondent committed misconduct in office in that he represented to his supervisor, Ott Carraway, that because of medical reasons he was unable to return to work when, in fact, he was operating a private business, Top Bookkeeping Services, during regular school work hours. The Respondent, Otha R. Reddick, is guilty of willful neglect of duties and misconduct in office in that he operated a private business, Top Bookkeeping Services, during regular school work hours. Based on these charges, the Petitioner seeks to convert its suspension of Respondent into a permanent termination of his employment. Respondent's duties as a Systems Analyst with Petitioner included supervising programmers in the Data Processing Center. His work hours consisted of a normal eight hour day. In addition to his employment by Petitioner, Respondent owned two businesses: Top Bookkeeping Services, a business engaged primarily in the preparation of tax returns and related bookkeeping functions; and Twin Oaks Production, a company involved in the promotion of bands and live burials. Respondent's operation of and duties connected with his ownership of Top Bookkeeping Services occurred after his regular hours of employment by Petitioner. Respondent used what is commonly referred to as seasonal or casual employees on an as needed basis for the operation of Top Bookkeeping Services. According to Respondent, the bookkeeping service has been operating at a loss since its inception. Respondent utilizes a similar employment arrangement in his operation of Twin Oaks Productions. On the morning of February 13, Respondent, while at work, became visibly upset when he was advised by his supervisor, Ott Carraway, that the payroll function of the Data Processing Center would be contracted out to a private agency. Respondent disagreed with this decision and made known his disagreement, since in his opinion, the Data Processing Systems Division was capable of and had in fact been properly carrying out the payroll functions for the School Board. Before leaving for his lunch break on February 13, Respondent Reddick inquired of the production control and leave clerk, Janet Guthrie, the amount of accrued sick and annual leave he had. During his lunch break, Respondent went home, took two Valium pills (one more than his prescribed dosage), laid across his bed and went to sleep. Before doing so, Respondent summoned to his apartment for medical assistance Theresa Fountain, his secretarial assistant at Top Bookkeeping Services. Then Ms. Fountain arrived at Respondent's apartment, she noticed that he was visibly upset, was red in the face, appeared stressed and his speech was slurred. Ms. Fountain, a former hospital employee assigned to a psychiatric ward, related that Respondent exhibited symptoms of a person suffering a nervous breakdown (TR. 208-210). After a few minutes, Ms. Fountain was able to get Respondent calm and they discussed the problem relating to the letting of the payroll function to a private entity. She suggested that the Respondent get some rest. Ms. Fountain was aware of Respondent's ulcer disease and stomach problems and phoned Respondent's daughter-in-law in Bonifay. Ms. Fountain asked Respondent's sons to come to Tallahassee (from Bonifay) to get medical attention for their father. Ms. Fountain phoned Respondent's supervisor, Ott Carraway, and informed him that in view of Respondent's nervous condition, she was of the opinion that he needed medical attention and, therefore, would be unable to return to work. Respondent's sons, Douglas and Ronald Elvin Reddick, drove to Tallahassee the evening of February 13 to pick up their father. Respondent's sons drove to Tallahassee in a van which has a sofa bed in the rear that Respondent used to lie down on for the trip to Bonifay. Upon arrival at Respondent's apartment, his sons assisted him out of the bed to the van. Respondent slept most of the entire trip from Tallahassee to Bonifay. Respondent spent the following day, February 14, lounging around his house in Bonifay, where he remained until approximately 10:00 p.m. the following day. He then drove to the Dallas-Ft. Worth, Texas, area accompanied by Country Bill White, the person used in the live burials. While in the Dalla-Ft. Worth area, Respondent spent the next two evenings enlisting support in the form of pledges from local tavern owners and selling magazine subscriptions and newspaper ads to finance the live burial act. During the next few days, Respondent drove to Houston, Texas, to visit his brother. He remained in Houston two days and returned to the Dallas-Ft. Worth area. The live burial which was then scheduled to take place in the Dallas-Ft. Worth area was postponed due to inclement weather. In this regard, the evidence revealed, and Respondent admitted, that he had planted to request leave to attend the live burial act in Texas on the scheduled dates of February 22 and 23, 1979. Respondent credibly testified that he had no planned (active) role in the scheduling of the live burial act. (Testimony of Respondent and his sons, Douglas and Elvin Reddick. TR. 172-176.) When the live burial act took place, Respondent was not present in Texas. On Sunday, February 25, Respondent drove to New Orleans where he briefly frequented several bars. He later drove to Bonifay, where he arrived at his home at approximately 9:00 p.m. He remained in Bonifay until the following morning, when he returned to Tallahassee. On Monday, February 27, Respondent phoned his supervisor, Cecil "Ott" Carraway, to inquire if he could pick up his paycheck. A lengthy telephone conversation ensued between Respondent and Supervisor Carraway during which conversation Respondent was advised by Carraway that in view of his protracted absence, he (Carraway) would be requiring Respondent to secure a doctor's excuse to substantiate his illness before his paycheck would be released. Chapter 6 GX 37-2, Rule 2.14(7), Florida Administrative Code, Leon County Rules and Regulations. Respondent explained to supervisor Carraway that it was necessary for Respondent to receive his paycheck inasmuch as he had requested and was granted leave by Centel, through the close of business on February 27, to pay his telephone bill or his service would be interrupted. Supervisor Carraway stood fast on his insistence that a doctor's excuse be submitted before releasing Respondent's paycheck. it was not until the following day, February 28, that Respondent was able to obtain a doctor's excuse from his regular physician, Dr. Norbert J. Wegmann, of Chipley, Florida. Respondent's residence phone service was interrupted by Centel on February 27 and was not restored until March 3. During the period when Respondent's phone service was interrupted, he used his office phone at Top Bookkeeping Services. During the conversation between Respondent and Supervisor Carraway on February 28, Respondent requested an additional two days leave. There is a dispute with regard to the type of leave Respondent requested and supervisor Carraway granted February 28. Respondent's version is that he simply requested time off, whereas supervisor Carraway's version is that he explained to Respondent that he had exhausted his sick leave and, therefore, it was necessary for him to use one day of annual leave which he had recently been credited with as of March 1. On February 27, Respondent spent most of the day lounging around his apartment. The next day Respondent went to his office at Top Bookkeeping Services (located at Park Twenty West) to have access to a phone and to begin work on his personal income tax return. On March 1, Respondent, while on what he considered to be annual leave status, prepared an income tax return for Mr. and Mrs. Ward, employees of Petitioner's key punch operations. The return was completed approximately 8:00 p.m. On the afternoon of March 1, Respondent received a telephone call from Charles Johnson and Linda Jordan, employees and agents of Petitioner, who scheduled an appointment to get their tax returns prepared at Top Bookkeeping Services during the afternoon of March 2. Employees Jordan and Johnson used the fictitious name of "Susie Jones" to secure the appointment. On March 2 Linda Jordan, Director of Personnel, and Charles Johnson, the then Director of Employee Relations, for the Leon School District, visited the offices of Top Bookkeeping Services at the agreed upon time. Another employee of Respondent's at Top Bookkeeping Services had been assigned to prepare the tax returns for "Susie Jones", who later turned out to be Petitioner's employees, Jordan and Johnson. The most that can be said about Respondent's presence at Top Bookkeeping Services is that he was in fact present. There were no customers at Top Bookkeeping Services at the time, nor did attorney Johnson, who testified, indicate that the Respondent even appeared to have been preparing tax returns when he and Director Jordan visited the Top Bookkeeping Services office (TR. 117). Attorney Johnson did not see what Respondent was in fact doing other than the fact that he was simply present. Attorney Johnson explained to Respondent that he thought that his job might well be in jeopardy by his presence at Top Bookkeeping Services while he was on leave. Attorney Johnson suggested that Respondent talk to Dr. Fenn about his presence at Top Bookkeeping Services. Respondent, being concerned about his job security expressed reluctance to visit the Superintendent with attorney Johnson and the Personnel Director present without the advice and assistance of his attorney. Respondent, attorney Johnson and Personnel Director Jordan could not come to an acceptable procedure to counsel with Dr. Fenn and Respondent remained at Top Bookkeeping Services. Attorney Johnson discussed the matter with Dr. Fenn and they jointly decided that Respondent should be suspended inasmuch as there was a "breach in Respondent's obligation to the School Board since he was working on other duties during school hours." Respondent was not given a copy of the Notice of Charges prior to the March 6 School Board hearing. The Board suspended Respondent at its March 6 meeting, which suspension remains effective. Norbert Wegmann, M.D., is a General Practitioner in Chipley, Florida, and was received as an expert in medicine for this proceeding. Dr. Wegmann has been treating Respondent for anxiety, tension, fatigue and irritability since approximately 1968. During this period, Respondent has undergone family and marital stresses and Dr. Wegmann has prescribed tranquilizers and analgesics for his (Respondent's) ulcer and stomach disorders. Dr. Wegmann suggested that Respondent work at a slow pace; take time off and generally do things which permit him to put his mind at ease and to remain in a relaxed condition at the onset of anxiety and stress (TR. 149). Dr. Wegmann considered that Respondent's taking time off from work would have been consistent with his prescribed treatment for Respondent. Although Dr. Wegmann last examined Respondent physically (during times material) approximately November of 1977, he sent Petitioner a written excuse to substantiate his authorization of Respondent's absence during the period involved herein based on his knowledge of Respondent's medical condition. (Testimony of Dr. Wegmann, TR 142, 143.) Janet Guthrie, Petitioner's production control clerk, is in charge of maintaining leave records and answering incoming phone calls. Ms. Guthrie reviewed Respondent's leave record before lunch on the morning of February 13, 1979, and advised Respondent that he had approximately ten (10) days of sick leave accrued at that time. At the beginning of March, 1979, Respondent earned an additional day of vacation and sick leave. Employees are permitted to call in to request sick leave. (Testimony of Janet Guthrie and Supervisor Carraway.) Dr. Ed Fenn, Petitioner's Superintendent of Schools, is the administrator and manager of the Leon County School District. He became familiar with Respondent based on conversations with supervisor Ott Carraway, to the effect that Respondent was taking sick leave to take care of his private bookkeeping services. Dr. Fenn considered that Respondent was absent without leave based on information gathered through Ott Carraway and the visits by attorney Johnson and Personnel Director Linda Jordan's visit to Respondent's bookkeeping service. Supervisor Carraway recommended that Respondent be suspended effective Monday with pay until a recommendation could be made to the School Board for a suspension without pay. Attorney Johnson delivered the suspension letter to Respondent. (Petitioner's Exhibit 1). Dr. Fenn acknowledged that Petitioner has no rule which prevents its employees from conducting personal business during non-working hours. Nor is there a rule which prevents employees from doing personal work during their vacation time. Dr. Fenn also made clear that the Board does not concern itself with the activities of its employees while they are on vacation leave. 2/ He also pointed out that when an employee exhausts all accrued sick leave, the leave category is switched to either vacation leave or leave without pay. In this regard, Respondent was not paid for leave taken on March 2, 1979. (Testimony of Dr. Fenn and Supervisor Ott Carraway.) Ott Carraway, Petitioner's Data Processing Director, is in charge of operating the computer center and supervising employees of the computer center. Carraway has known Respondent professionally approximately eight years and recommended that he be hired. Supervisor Carraway, in explaining Petitioner's leave procedures, related that leave requests must be approved in advance, with the exception of sick leave. On February 13 at approximately noon, Theresa Fountain phoned supervisor Carraway and explained that Respondent was suffering from a nervous condition and, therefore, needed time off. This was, of course, the date that supervisor Carraway advised Respondent that the payroll function of the computer center was being transferred to an outside agency. Supervisor Carraway considered the request by Ms. Fountain to be a request from Respondent for sick leave, and the request was granted. According to Carraway, when Respondent, much like other employees, are absent, their work loads are distributed among other employees. Supervisor Carraway received confirmation of Respondent's illness from Dr. Wegmann on March 1, at which time his check was released. Supervisor Carraway considered Respondent's leave request for two additional days on February 28 to be a request for sick leave based on Respondent's discussion of his nervous condition. Respondent, in the usual situation, would have been placed on annual leave when his sick leave was exhausted. Supervisor Carraway surmised that Respondent was abusing his sick leave when he heard that Respondent had filed tax returns for two employees who worked in the Data Processing Center during the evening of March l. At supervisor Carraway's instigation employees Charles Johnson and Linda Jordan made an appointment through a fictitious name to get their tax returns prepared at Top Bookkeeping Services during the afternoon of March 2. After the visit by employees Johnson and Jordan to Respondent's offices at Top Bookkeeping Services, supervisor Carraway was made aware of Respondent's presence at the offices at Top Bookkeeping Services and recommended that he be suspended for misuse of sick leave. This recommendation was acted upon by Superintendent Fenn, which resulted in formal action by the School Board on March 6, 1979. Prior to this incident, supervisor Carraway has never requested employees to bring in a medical excuse to document their sick leave. Supervisor Carraway knew of no rule or regulation promulgated by Petitioner which required that an employee on sick leave be confined to bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Leon County School Board reinstate Respondent, Otha Reddick, to his former position as Systems Analyst (or a substantially equivalent position) effective March 2, 1979. That the Respondent be made whole for all losses of earnings he suffered as a result of the suspension less interim earnings, plus interest at the rate of eight (8 percent) percent per annum. 5/ That Respondent's leave records be credited with the appropriate amounts reflective of the leave and other employee benefits he would have earned but for his suspension of March 2, 1979. That Respondent's personnel folder be expunged of all records relative to the suspension. RECOMMENDED this 8th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in the case is whether Vera Evans (Petitioner) was the subject of unlawful discrimination by Life Care Center of Altamonte Springs (Respondent) on the basis of disability, in violation of chapter 760, Florida Statutes.
Findings Of Fact Since 1977, and at all times material to this case, the Petitioner has been employed as a licensed practical nurse (LPN). In 2003, the Petitioner began her employment as an LPN with the Respondent in their skilled nursing unit, where she remained employed until her termination from employment on March 26, 2015. According to the formal job description adopted by the Respondent for its LPNs, persons employed as LPNs by the Respondent must “practice dependable, regular attendance” because the essential function of the LPN position is to provide patient care. The Respondent must insure that adequate staffing is available and present to provide such care. The failure of an LPN to be present for work and to be prepared to carry out the functions of the position increases the workload of other staff and can negatively affect patient care. The Respondent has adopted formal policies related to various forms of leave, including routine sick leave as well as extended requests for leave related to medical issues, such as Family Medical Leave Act (FMLA) leave. Additionally the Respondent’s formal policies encourage an employee to request an accommodation when medical impairments present challenges to the performance of the essential functions of an employee’s position. At the hearing, the Petitioner acknowledged that she was aware of the Respondent’s attendance and leave policies. The Petitioner previously requested and received a work accommodation in February 2014, when she was unable to work a full schedule due to a medical issue. In November 2014, the Petitioner took FMLA leave to address another medical issue. According to the documentation submitted by the Petitioner to the Respondent as part of her FLMA leave request, the period of the Petitioner’s incapacity was November 17, 2014, through February 28, 2015. The Petitioner requested and was granted 12 weeks of FMLA leave, which commenced on November 17, 2014. The end of the Petitioner’s 12-week FMLA leave period was February 9, 2015. The Respondent’s FMLA leave policy specifically provides that an employee must return to work on the next scheduled workday after the expiration of the leave period, unless the employee provides a doctor’s note and receives approval from the Respondent. The Respondent’s FMLA leave policy also requires an employee to periodically contact the Respondent during the leave period and report her status, including her intention to return to work. During the time that the Petitioner was on approved FMLA leave, the Petitioner failed to contact the Respondent to indicate when she would be available to return to work. Several times during the Petitioner’s absence, Jermaine Morris, the Respondent’s staffing coordinator, contacted the Respondent and attempted to determine when she would be able to return to work. Mr. Morris did so at the direction of Astrid Lopez, the Respondent’s Director of Human Resources. Mr. Morris’ attempts were unsuccessful because the Petitioner was unable to identify an anticipated return date during their conversations. The Petitioner’s approved FMLA leave expired on February 9, 2015, by which time the Petitioner had failed to communicate to the Respondent her intention to return to work. The Respondent’s adopted leave policy specifically requires that non-FMLA leave requests must be submitted in writing to the requesting employee’s immediate supervisor, and must state the purpose of the request and the proposed dates of absence. Although the Petitioner had not filed a written request for additional leave or submitted the required documentation prior to the expiration of her FMLA leave, the Respondent granted non-FMLA leave to the Petitioner when the Petitioner did not return to work. At the same time, Ms. Lopez also placed the Petitioner on an “as needed” work status (also known as “PRN” status). The PRN classification allowed the Petitioner to remain on the Respondent’s employment roster and required only that she work a single shift during a 60-day period. The Respondent’s leave policy provides that non-FMLA leave is limited to no more than six weeks. Accordingly, the Petitioner’s non-FMLA leave period continued through March 26, 2015. Ms. Lopez testified that, despite the Petitioner’s failure to submit a written request for non-FMLA leave policy, she decided to grant non-FMLA leave because the Petitioner was a valued employee of the Respondent. The Petitioner never submitted a written request for non-FMLA leave, but apparently after Ms. Lopez had already approved the non-FMLA leave, the Petitioner had a doctor’s note delivered to the Respondent. After the Petitioner filed her complaint of discrimination with the FCHR, the Respondent, in preparing to respond to the Petitioner’s complaint, located a note in the Petitioner’s personnel file, purportedly written by a physician on a prescription pad and signed February 19, 2015. The note indicated that the Petitioner would require an additional three months of leave. The Petitioner’s approved FMLA leave had expired prior to the date of the note. For reasons that are unclear, the note was never delivered to Ms. Lopez for her review. Ms. Lopez had approved the non-FMLA leave for the Petitioner prior to the date of the note. The Petitioner never contacted anyone in the Human Resources office to follow-up on the note, and apparently assumed that an additional three months of leave had been approved. The Respondent’s failure to respond to the note was inadvertent. Had the Petitioner actually submitted a written request for non-FMLA leave as required by the Respondent’s policy, the Respondent would have been made aware of the note. There is no evidence that the Respondent’s failure to respond to the note was purposeful or discriminatory against the Petitioner. The Respondent’s leave policy also sets forth the procedure and timelines by which the benefits of an employee on non-FMLA leave are suspended and a COBRA insurance notice issued. The Petitioner’s benefits were suspended and she received a timely COBRA insurance notice as provided by the policy. On March 26, 2015, at the conclusion of the approved non-FMLA leave period, the Respondent terminated the Petitioner’s employment. Prior to the termination, the Petitioner had failed to work a single shift as required by her PRN classification. Moreover, the Petitioner had failed to comply with state- mandatory LPN training requirements that had been imposed prior to the termination date. The Petitioner offered no evidence at the hearing that the Respondent’s decision to terminate her employment was at all related to disability. To the contrary, the Respondent approved the leave requested by the Petitioner, and in fact, granted additional leave to the Petitioner, without her request, so that she remained on the Respondent’s roster of employees. There is no evidence that the Respondent failed to provide any disability-related accommodation requested by the Petitioner. At the hearing, the Petitioner testified that she was not interested in returning to work for the Respondent.
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 the Petitioner's complaint of discrimination. DONE AND ENTERED this 18th day of May, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2016.
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
