Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. Contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco Mechanical Contractors, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour for regular time and $10.50 per hour for overtime. From January 1, 1978 until April 30, 1978, John W. Culp was employed as a plumber at the rate of $7.50 per hour for regular time and $11.25 per hour for overtime. While making $7.00 per hour, Culp was paid $3.07 per hour less than the prevailing wage for regular time hours worked and $4.60 less than the prevailing wage for overtime hours worked. During the period January 1, 1978 until April 30, 1978, Culp received $2.57 less than the prevailing wage for regular time hours worked and $3.95 less than the prevailing wage for overtime hours worked. The figures presented by the Respondent and those of the Petitioner do not agree concerning the number of hours worked. Exhibit 7 reflects that Culp worked a total of 856 hours at $7.00 per hour and 8 hours of overtime at $10.50 per hour. Exhibit 7 further reflects the Culp worked 683 hours at $7.50 per hour and 47.5 hours at $11.25 per hour. The amount Culp was underpaid prior to January 1 is equal to the sum of the regular hours worked times $3.07 and the overtime hours worked times $4.60 per hour. The amount Culp was underpaid subsequent to January 1, 1978, is equal to the sum of the number of regular hours worked times $2.57 and the number of overtime hours worked times $3.95. The amount that Culp was underpaid prior to January 1 is $2,664.72 and subsequent to January 1, $1,942.94 for a total of $4,607.66. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was filed within the time prescribed by statute. Pursuant to the provisions of Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is currently withholding $4,779.74 from Acco Mechanical Contractors, Inc. while awaiting the decision of this administrative hearing.
Conclusions Petitioner has established that he was hired by and worked for Acco, Inc. as a plumber and that he was paid $7.00 per hour from July 17, 1977 until January 1, 1978 and that he was paid $7.50 per hour from January 1, 1978 until April 30, 1978. The prevailing wage for plumbers on the Juvenile Detention Center project was $10.07 per hour. Petitioner John W. Culp is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the, prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employer be paid "not less than the prevailing wage". Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage rate for the total number of hours worked at a rate less than the prevailing wage. Therefore, the Petitioner is entitled to $4,383.23. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff, et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rate, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay to the Petitioner, from the amount it is withholding in this claim, the amount of $4,383.23 and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32301 Telephone No.: (904) 488-7396 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr., Esquire Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Luther J. Moore, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Thomas A. Koval, Esquire Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 Stephen F. Dean, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter is order directing the contracting authority to pay the employee the sum of $4,607.66 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr. Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR JOHN W. CULP, Petitioner, vs. CASE NO. 78-1281 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978, in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: This cause was presented on a claim filed by John W. Culp against Acco, Inc. alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, John Culp, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour. From January 1, 1978 until April 30, 1978, Petitioner was employed as a plumber at the rate of $7.50 per hour. Exhibit No. 7, the Weekly Time Reports of John W. Culp, establish that Culp worked a total of 856 hours at the rate of $7.00 per hour and 8 hours at $10.50 per hour. Furthermore, the Reports establish that Culp worked 683 hours at the rate of $7.50 per hour and 47.5 hours at $11.25 per hour. Prior to January 1, 1978, the difference between what Petitioner was paid end the prevailing wage was $3.07. After January 1, 1978, the difference was $2.57. The total difference between what Petitioner was paid and the prevailing wage for the time Culp was employed by Acco, Inc. is equal to 856 hours multiplied by $3.07, plus 683 hours multiplied by $2.57. The total difference is $4,383.23. Petitioner has complied with the provision of Section 215.19(3)(a) 1 and 2, Florida Statutes, by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid. This affidavit was timely filed. Pursuant to Section 215.19, Florida Statutes, the Department of Health and Rehabilitative Services is withholding $4,779.74 from Acco, Inc. pending the outcome of this claim.
Findings Of Fact The Petitioner, John C. Scott, has been a Career Service employee with the Department of Transportation for approximately ten years, assigned to the Centerline Maintenance Office in Pompano Beach, Florida. During all times material to these proceedings, Petitioner's immediate supervisor was Allen Thomas. Robert Lucas, Highway Maintenance Supervisor in charge of the District III Centerline Crew, is the Petitioner's second-level supervisor. Thomas and Lucas are the only individuals at the Centerline Maintenance Office authorized to approve leave for Petitioner. On May 23, 1987, the Petitioner was arrested for D.U.I. and placed in jail for fifteen days. After the Petitioner was arrested, he called his mother and asked her to inform his supervisor at work that he had some personal business to attend to and would need annual leave. On May 26, 1987, the Petitioner failed to report to work and had not previously requested leave from any of his supervisors. On the morning of May 26, 1987, Ms. Scott, the Petitioner's mother, called Mr. Lucas and told him that her son would need a couple of days off from work because of personal business. Mr. Lucas informed Mrs. Scott that annual leave could not be authorized over the telephone for personal business but that leave could be granted for an emergency situation. Ms. Scott reiterated that the Petitioner had some personal business to take care of. Mr. Lucas advised her that annual leave could not be authorized over the telephone under those circumstances. On June 1, 1987, Mr. Lucas was informed by Mr. Oshesky, the District Personnel Supervisor, that Petitioner's attorney had called and told him that Petitioner was in jail. The Petitioner was absent from work on May 26, 27, 28, and June 1, 2, 3, and 4, 1987. May 29, 30 and 31, 1987 were non-work days for Petitioner. At the time, the Petitioner's work week consisted of four ten hour days from 7:30 a.m. to 5:30 p.m. The last day that Petitioner actually reported for work was Wednesday, May 20, 1987. However, on Thursday, May 21, 1987, the Petitioner was absent from work on authorized annual leave, May 22-24, 1987, were non-work days and on Monday, May 25, 1987, the Petitioner was absent from work due to an official holiday (8 hours) and authorized annual leave (2 hours). On June 5, 1987, the Respondent advised Petitioner by certified mail, return receipt requested, that he was being terminated effective May 20, 1987, (Petitioner's last day at work) for abandonment of his position. The Petitioner's absence from work and involvement with civilian authorities were related to an admitted alcohol problem. Since the Petitioner was released from jail, he has participated in a twenty-day in-patient substance abuse program at John F. Kennedy Hospital and is presently involved with a Fort Lauderdale after-care program. The Petitioner had been provided with a Department of Transportation Employee Handbook by his employers. The Handbook outlined the requirements for annual leave and leave of absences without pay. The Handbook provides in part as follows: Annual Leave - Get your supervisor's approval before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work complete the leave request form, as appropriate. Leaves of Absence Without Pay - Upon request, you may be granted leave without pay ... for a period not to exceed twelve calendar months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Administration enter a final order finding that the Petitioner, John C. Scott, has abandoned his Career Service position with the Department of Transportation. DONE and ORDERED this 16th day of October, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2750 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in substance in Finding of Fact 3. Partially adopted in substance in Findings of Fact 5 and 6. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 3, 5, and 6. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 11. Adopted in Findings of Fact 7 and 9. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Hon. Kaye N. Henderson Department of Transportation Secretary Room 562 Burns Building Department of Transportation Tallahassee, Florida 32399-0450 605 Suwannee Street Tallahassee, Florida 32399-0458 Patrick J. Curry, Esquire Attn: Eleanor F. Turner, 200 Southeast Sixth Street M.S. 58 Suite 200 Ft. Lauderdale, Florida 32301 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III, Esquire 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact The Petitioner, William Thomas, was employed at times pertinent hereto as a permanent employee at the Duval Regional Juvenile Detention Center (Detention Center) operated by the Department of Health and Rehabilitative Services. His title was Detention Case Worker I. During the two week period beginning June 13, 1988, the time period relevant to this proceeding, he was working a so called "asymmetric workweek." This is a modified work schedule such that the Petitioner was working two work days on the weekends consisting of two sixteen hour shifts, one for each day, for a total of thirty-two hours of work scheduled to be performed by the Petitioner on June 18 and 19, 1988. Prior to the problem which arose in this situation, the Petitioner was also scheduled to work on Tuesday, June 21, but not on Monday, June 20. The Petitioner's immediate work supervisor was Wilson Reynolds, Jr., who testified on Petitioner's behalf. In addition to the Petitioner, Mr. Reynolds supervised twelve other employees who were working the asymmetric work week. This work week had been approved by the Department of Administration approximately two years previously, in 1986, at least as to this juvenile detention center. Pursuant to HRS rules, Mr. Wilson had authority to grant emergency leave when employees requested as, for instance, when an employee phoned in such a request when he was unable to come to work due to some emergency having arisen. Mr. Wilson also had authority to schedule employees to work shifts outside of their routine work schedule if the need arose. Mr. Wilson's employees, for instance, had been scheduled to work some extra duty in order to perform the duties of other employees who had to be absent from their normal work stations to attend training sessions. According to agency policy, in Mr. Reynolds' absence, the supervisor immediately on duty could grant tentative approval of emergency leave requests. In the event the supervisor on duty was unable to approve or deny the leave request, Mr. Reynolds had authority to approve leave requests "after the fact." It developed that some time during the week of June 13, the Petitioner became incarcerated. The Petitioner was unable to obtain access to a telephone for several days, and so, at his behest, his wife called the "Master Control" office at the detention center on June 16, 1988, to advise the Petitioner's employer that he would not be able to report to work, as scheduled, due to emergency reasons. On June 18, 1988, she again called that same "Master Control" office to advise that the Petitioner would be away from work until June 30, 1988, due to an emergency beyond his control. The Petitioner, after his last duty shift which he had performed, was not scheduled to work until June 18, 1988. He was then scheduled to work two eight hour shifts on June 18 and two eight hour shifts on June 19, which was a Sunday. On Monday, he was not scheduled to work. Then on June 21, Tuesday, he was scheduled to work an eight hour shift. Mrs. Thomas' reason for calling the employer's office was to put the employer on notice of his unavoidable absence from work. She was not aware of the rule requiring her to speak with the immediate supervisor. The immediate supervisor was not on duty on the day that she called in any event. She did speak with a staff member, a Mrs. Wavel Johnson, with whom she was acquainted, who advised her to have the Petitioner himself call in and request approval for the absences. Mrs. Thomas then revealed that her husband was incarcerated and would be incarcerated until June 30, 1988, which was why he was unable to call. This information was then conveyed to Mr. Reynolds, the Petitioner's immediate supervisor on June 19, 1988 at the beginning of the shift. On that day, during the morning, the Petitioner called and spoke with Mr. Reynolds, his supervisor. The Petitioner advised him of his incarceration and his anticipated release date of June 30, 1988, requesting that he use his accrued annual leave to cover this absence. Mr. Reynolds orally agreed to the request and approved it, pending the Petitioner's return to work and submittal of proof of the reason for the stated emergency basis for absence. Mr. Reynolds considered Mr. Thomas' incarceration as a sufficient justification for granting emergency leave. In the log book, Mr. Reynolds had a staff member, Mrs. Johnson, make a note that Mr. Thomas had called in requesting leave and that he "had no problem" granting emergency leave. He testified that he intended that notation to mean that he had approved the leave request. During Mr. Reynold's conversation with the Petitioner, he advised Petitioner that he would schedule him off duty for Tuesday, June 21, 1988, because he already had sufficient staff who would be present for duty to cover his assignment and would not need the Petitioner. Thus, for the eight hour shift he was originally scheduled to work on June 21, 1988, the Petitioner was not absent without approval either. The roster was changed so that he was not even scheduled to work that day. Andrea Cash is the superintendent of the Duval Regional Detention Center. On or about June 20, 1988, she read Mrs. Johnson's entry in the log book and concluded that Mr. Reynolds had not granted the necessary leave approval to cover the Petitioner's absence. Ms. Cash interpreted that entry to be that the leave approval was merely pending and that Mr. Reynolds had "no problem" with granting it. Ms. Cash, however, did not confer with Mr. Reynolds or Mrs. Johnson about what the entry meant nor seek any clarification as to the meaning of the entry or Mr. Reynolds' intentions with regard to the leave approval. Ms. Cash concluded that the leave had neither been approved nor denied, but did not communicate that position to the Petitioner. Instead, on June 23, 1988, she wrote the Petitioner advising him of his alleged job abandonment due to his absences of June 18th and 19th. She never discussed her plans to terminate the Petitioner, for alleged abandonment, with Mr. Reynolds. The approval granted during June or July 1986 to the Detention Center to implement an asymmetric work week was in accordance with Rule 22A-8.003(1), Florida Administrative Code. That rule provides that eight hours of work shall constitute a work day for all full-time employees, unless a different work day is specifically approved by the Secretary of Administration. The asymmetric work day had been so approved and implemented at times pertinent hereto. The Petitioner normally worked two 16 hour work days from 7 a.m. to 11 p.m. on Saturday and on Sunday plus one other eight hour work day. Thus, three calendar work days constituted Petitioner's normal work week of 40 hours. The Detention Center has a "Facility Operating Procedure on Leave and Attendance" which provides that an employee must contact the supervisor on duty in advance of the beginning of his shift and advise that supervisor of the nature of any emergency concerning which he asks for leave. The duty supervisor then has authority to tentatively approve or deny the request. The employee must personally speak with the supervisor who is on duty. Thereafter, on the first day the employee reports back to work an "HRS Form 84" must be completed and the immediate supervisor must provide final approval if the annual leave is to be approved due to the stated emergency. The procedure does not provide that the employee's supervisor is to discuss the request with higher levels of supervision prior to granting approval for use of annual leave to cover such an absence. This procedure and policy does not require that higher level supervisors review the request and give final approval or denial. In other words, the employee in this situation is using his own annual leave to make up for his absence for emergency reasons and the facility's policy gives the immediate supervisor himself or herself the authority to approve it or deny it without recourse to higher supervisory authority. The Petitioner's wife contacted the person or office she believed was appropriate to report the Petitioner's impending absence and to explain that it was for emergency reasons, not knowing that she should speak to his immediate supervisor. In any event, before the Petitioner had missed three consecutive days of work he himself contacted his immediate supervisor, Mr. Reynolds, during the morning of June 19, 1988, and obtained Mr. Reynolds' verbal approval for absence due to emergency reasons, to be "covered" by Petitioner's annual leave. Mr. Reynolds did not tell the Petitioner that his request did not comply with the Facility Operating Procedure on Leave and Attendance. Mr. Reynolds, rather, accepted the Petitioner's justification for the emergency leave and approved it.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED that a Final Order be entered determining that the circumstances presented in this case, found and discussed above, did not constitute abandonment of position, as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code, and directing that the Petitioner be reinstated to his former position with backpay and reimbursement of related benefits. DONE and ORDERED this 20th day of March, 1989, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989. APPENDIX Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Respondent's Proposed Findings of Fact Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent immaterial. Accepted, but not in itself dispositive of material issues presented. Accepted, but not in itself dispositive of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as contrary to the preponderant weight of the evidence. COPIES FURNISHED: Linoria Anthony, Esquire 345 South Magnolia Drive & Suite F - 21 Tallahassee, FL 32301 Scott D. Leemis, Esquire P. O. Box 2417 Jacksonville, FL 32231-0083 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Petitioner is a black female. She was employed by Respondent Alachua County from April 20, 1984 to August 30, 1989, in the Metamorphosis Program as a Drug Counselor I. At all times material, the Metamorphosis Program was a seven day a week, 24-hour per day residential drug treatment program which provided treatment and counseling for male and female adults. Organizationally, it is now under Respondent's Criminal Justice Services Department f/k/a the Department of Corrections. The employees at the Metamorphosis Program consisted of, in descending rank, the Program Supervisor, a Program Coordinator, two Drug Counselor II's, two Drug Counselor I's, and two Drug Counselor Aides. Briefly, at some point in time, there was also a Case Worker position which was "lost" for lack of funding. From 1984 to 1986, James Whitaker, a male, directly supervised Petitioner. From 1986 to 1988, Tootey Richey, a female, supervised her. The remainder of her employment, Petitioner was again supervised by James Whitaker. Robin Robinette, a male, was a Drug Counselor Aide from 1984 to 1988. From 1988 on, the only other Drug Counselor I besides Petitioner was Robin Robinette. Another female Drug Counselor I was employed before that. There were also four female Drug Counselor Aides (Duncan, Johnson, Spence, and Goodman) who worked at various times from 1985 to 1989. There were two females (Hague and Richey) in different supervisory positions at various times from 1985 to 1988. Petitioner testified that "generally" and "quite often" during the whole of her employment with Metamorphosis from 1984 to 1989 she was required to work weekends and a lot of midnight to 8 a.m. shifts and 16 hour shifts and that her male counterparts were not required to do so. Petitioner thought that sometimes she had only four hours off between two eight hour shifts. However, Petitioner's testimony with respect to her hours of work was vague and indefinite. For instance, Petitioner did not know the hours or days of the week she worked in 1984, except that she often worked more than 40 hours per week without being paid overtime. She also maintained that she had no steady or specifically assigned work hours in any week and never had an identical work week. She felt that in 1985 she had worked Saturday noon to midnight (which is 12 hours) or eight a.m. until four p.m. (8 hours) or midnight to eight a.m. (8 hours) some days; that in 1986 she worked mostly Saturdays and worked some Sundays "as needed," but not half of all the Sundays in that year; that in 1987, she generally worked Monday through Saturday, not Sundays. For all of 1988, she would only state, "I cannot be specific on those dates and times." Mr. Warren McCluney testified on Petitioner's behalf to the effect that while he had been employed as a Drug Counselor Aide at Metamorphosis between August 1986 and May 1988, Petitioner was the only Metamorphosis employee who was required to work a sixteen hour shift. He based his testimony in part on having heard Petitioner's oral complaints to supervisors in weekly staff meetings, read her requests for schedule readjustments in the program log books wherein all events of each shift were supposed to be recorded, and, he said, having relieved as many as three different white males who had had to split up Petitioner's sixteen hour shift when she was unable to come in on a weekend due to illness. Since he, a male employee, was never required to work a 16 hour shift, Mr. McCluney viewed Petitioner's schedule as discriminatory to her as a female. Mr. McCluney conceded that he was hired to work only 30 hours a week in the first place. Mr. McCluney's explanation of how he knew Petitioner regularly worked sixteen hour shifts or that three males often split up her sixteen hour shifts was vague and/or unconvincing. Giving Mr. McCluney every benefit of the doubt and reconciling the contradictory portions of his testimony as much as possible, he relieved Petitioner at the Thursday p.m./Friday a.m. midnight shift change and at the Friday p.m./Saturday a.m. midnight shift change, and he thought that Petitioner was working some Saturdays from noon to midnight, which is actually 12 hours, not the 16 hours to which he testified. He thought she worked noon to midnight Saturdays, because Petitioner relieved him some Saturdays at noon and he knew she worked until the Saturday p.m./Sunday a.m. midnight shift change. None of these shifts, as described by Mr. McCluney, totalled over 12 hours. However, he also testified that when Petitioner did not come in at noon Saturday, he had to call for backup. Therefore, it would appear that any knowledge Mr. McCluney had about how Petitioner's subsequent shift was finally divided up in her absence depended on the logs he saw or something he had been told when he came back on duty several days later since he did not relieve Petitioner at the Saturday p.m./Sunday a.m. midnight shift change. Mr. McCluney admittedly relieved only one person each shift change. The pass logs in evidence do not substantiate either Petitioner's or Mr. McCluney's testimony that Petitioner ever consistently worked sixteen hour shifts except on an emergency, "as needed," or rotational basis. See infra. All credible evidence shows that at least after February 8, 1988, Petitioner regularly worked approximately 4:00 p.m. Thursday to midnight, approximately 4:00 p.m. Friday to midnight, and then, after 12 hours off duty, she worked approximately noon Saturday to midnight, when she was relieved by Jaime Goodman. This schedule was part of a formal plan which went into effect February 8, 1988 and which is described in greater detail, infra. Although characterizing the number of times Petitioner was called in on an "as needed" or "emergency basis" as an "excessive" amount over her male counterparts, Mr. McCluney was not able to specify when Petitioner was called in with any degree of accuracy. Again, giving him the benefit of the doubt, Mr. McCluney apparently meant that Petitioner was often called in "early" to cover the three or four hour period from Saturday noon to 3:00 p.m. or Saturday noon to 4:00 p.m., since he admittedly thought Petitioner's regular sign-in time was 3:00 or 4:00 p.m. Saturdays as well as on Fridays. However, he also had no way to judge how often this occurred. Mr. McCluney could also have been confused by an occasional rotational 16 hour shift spanning some Tuesdays and Wednesdays which was part of the formal plan (see infra.), but if so, he never made that clear. Also, Mr. McCluney had been terminated by Respondent from his Drug Counselor Aide position for alleged misconduct. His candor and demeanor while testifying bespoke of considerable bias against his former superiors. For this, and for all the foregoing reasons, his testimony is not fully credible or convincing. James Santangelo, a male, is currently Metamorphosis Program Coordinator. He assumed that position in September 1988. He was previously employed at Metamorphosis as a Drug Counselor II from 1985 to 1988. According to his testimony, prior to a reworking of the work hours schedule in early 1988 by Mr. Scott Simmons, no one's schedule regularly required working sixteen hour shifts. However, given the nature of the Metamorphosis program, which required staff coverage on a round-the-clock basis, every Metamorphosis employee, including but not limited to Petitioner and Mr. Santangelo, had been required to work some sixteen hour shifts in emergency situations or when another employee called in sick or was on pre-approved vacation. From 1985 to 1988, the schedule was done in a "helter-skelter manner at best" and all job classifications of employees worked interchangeably, with the big problem being weekends, which were "hit or miss." Although Mr. Santangelo "assumed that they [supervisors] tried to inconvenience everybody equally," employees who answered their phones on weekends were usually the ones required to fill in for emergencies. Mr. Santangelo also conceded that prior to 1988, people who had a regular shift of 4:00 p.m. to midnight might have had to stay an additional eight hours (totalling 16 hours on duty at a stretch) more frequently than employees in other shifts if a replacement could not be reached in an emergency or when someone was on vacation. Mr. Santangelo recalled one three day period in 1988 when he had had to cover for Petitioner when she called in sick and many similar situations before 1988 when he had been called in to "cover" for her, although he, also, was vague on when those occasions occurred. Mr. Santangelo felt that Petitioner's outside activities, including child care and illness, scrambled the work schedule more, both before and after the 1988 schedule change, than did the outside activities of any other employee. However, he was not specifically familiar with Petitioner's schedule prior to the 1988 change by Mr. Simmons. Charles Scott Simmons, a male, has had continuous supervisory oversight of Metamorphosis since August 1987. When Mr. Simmons came on board, he noted that the chain of command was cumbersome, redundant, and "messy". The work schedules of employees were also "messy." At that time, all employees reported directly to the Program Coordinator which resulted in supervision problems. To provide better supervision of employees by their direct supervisors and better interaction between employees and supervisors, Mr. Simmons implemented a new work schedule. The new schedule provided for the two Drug Counselor I's to report to a Drug Counselor II and the two Drug Counselor Aides to report to the other Drug Counselor II. The individual employee work hours were scheduled to implement the reporting system. The new schedule allowed supervisors and those supervised to have regular interaction and the opportunity for supervision and input. It was also equitable in that the two Drug Counselor Aides split the weekend up evenly and the Drug Counselor I's split the week up evenly. The intent was to make mirror images of similar employees' schedules. One weekend out of every month someone would have to wear a beeper and be "on call" to go in to "cover" whatever emergency came up. Otherwise, no one was tied to the phone or likely to get haphazardly tapped for extra duty hours on the weekends. The new work hours schedule was not implemented until after all employees had had an opportunity for input. Petitioner's written input or feedback came late (December 29 instead of December 21, 1987) on Mr. Simmons' proposed time line for discussion at the December 22, 1987 staff meeting. Petitioner's proposed alternative schedule allowed for some sixteen hour shifts, but it did not permit all employees to work regularly scheduled hours. It lacked clarity and was not "holistic" in that it had some full-time employees working more than 40 hours per week and other full-time employees working less than 40 hours per week, and it did not accommodate the weekly staff meetings which were central to Metamorphosis' therapeutic program. Therefore, all of Petitioner's suggestions were not included in the final schedule. However, the final standard work hours schedule did adopt Petitioner's request not to work Sundays on a regular basis due to her church activities. The new standard work hours schedule was finally implemented only after posting, feedback, finalization of schedule, re-posting, and one month preparation time to allow employees to change around their personal affairs to accommodate the new schedule. The new schedule became effective on February 8, 1988 and continued in effect the remainder of the time that Petitioner was employed with Metamorphosis, except for some minor fine tuning of a half hour here or there, which is immaterial here. Under the new work schedules, Petitioner's work hours were: Thursday 4:00 p.m. to 12:30 a.m. (midnight) Friday 4:00 p.m. to 12:30 a.m. (midnight) Saturday 12:30 p.m. (daylight) to 12:30 a.m. (midnight) Under the new work schedule, on Wednesday, Petitioner, who was the female Drug Counselor I, rotated on a quarterly basis with Robin Robinette, the male Drug Counselor I, the hours of 12:30 a.m. (midnight) to 8:00 a.m. OR 4:00 p.m. to 12:30 a.m. (midnight). [See Findings of Fact 25-29]. Under the new work schedule, Petitioner also was required to attend a staff meeting on Tuesday from 3:00 p.m. to 7:00 p.m. The staff meeting was mandatory for all Metamorphosis staff members. Under the new work schedule, Petitioner had Sunday and Monday off. Under the new work schedule, Robin Robinette's work hours were: Monday 4:00 p.m. to 12:30 a.m. (midnight) Tuesday 4:00 p.m. to 12:30 a.m. (midnight) Sunday 12:30 p.m. (daylight) to 12:30 a.m. (midnight) Like all employees, Mr. Robinette was also required to attend the mandatory staff meeting from 3:00 p.m. to 7:00 p.m. Tuesdays. Under the new work schedule on Wednesday, Mr. Robinette would rotate quarterly with Petitioner by working either the 12:30 a.m. (midnight) to 8:00 a.m. shift OR the 4:00 p.m. to 12:30 a.m. (midnight) shift. The midnight shift on Wednesday morning was an "odd duck" because Mr. Simmons was trying to split seven 24 hour periods equally between two people in each job description. The result was that when the quarterly rotation occurred, there would be a sixteen hour shift. This worked out to someone working Tuesday 4:00 p.m. to 12:30 a.m. (midnight) and then Wednesday 12:30 a.m.(midnight) to 8:00 a.m. Mr. Simmons testified at one point that he never intended Petitioner to draw that quarterly sixteen hour shift on Wednesday (12:30 a.m. to 8:00 a.m.) following a Tuesday shift of 4:00 p.m. to 12:30 a.m. and that as he planned it, that should not have happened. However, his testimony is confused or contradictory on this issue in some places and some exhibits suggest that Petitioner did have to pull this sixteen hour shift, alternating with Mr. Robinette. Nonetheless, this discrepancy is largely irrelevant because either Petitioner (a female) did not regularly pull this "odd duck" shift or she pulled it no more frequently than did her male counterpart, Robin Robinette, the other Drug Counselor I. The fact that Drug Counselor Aides below her job classification and Drug Counselor II's above her job classification did not pull the same or similar shifts is immaterial because they were not similar male employees, that is, they were not her "job counterparts". Respondent's witnesses testified credibly that on an "as needed" basis or "in an emergency," all employees, regardless of gender or job classification, had undoubtedly been required to pull some 16 hour shifts even after the new work schedule went into effect in 1988, but that these were rare occasions such as when another employee called in sick. Because Drug Counselor I's and II's were "exempt" (or salaried) positions, these positions, whether occupied by a male or a female, never drew overtime pay. Therefore, neither Petitioner nor her male counterpart, Mr. Robinette, nor any of their superiors, drew any overtime pay, ever. Also, every possible arrangement was utilized to avoid calling in those employees who were not exempt, such as Mr. McCluney, because if such employees were worked overtime, they would have to be paid overtime. All concerned, including Mr. McCluney, concur that Mr. McCluney was only scheduled for, and only actually worked, 30 hours per week. Petitioner's claim herein was limited to the allegation that she was discriminated against by consistently having to work sixteen hour shifts and work on weekends when no similar male employee did so, but Petitioner and Mr. McCluney also advanced considerable information to the effect that Petitioner was frequently denied requests for sick leave for herself or her children's special care, that she was treated rudely on these occasions, and that she was derided by supervisors when she reiterated her requests and complaints in writing in the pass logs and orally in staff meetings. In response, Respondent submitted evidence of Petitioner's sick leave usage, showing that she used 334.50 hours of sick leave for the period of January 26, 1988 to March 21, 1989. This amounted to Petitioner using twice as much sick leave as the next highest user in the Division. If anything, this evidence confirmed Mr. Santangelo's testimony that some employees had to work extra hours outside their standard work schedules to accommodate Petitioner's frequent absences, at least during that period of time. Although the format of this evidence does not readily convert into which genders and job classifications took up the slack for Petitioner or how long their shifts were, it may be reasonably inferred that Petitioner was reciprocally accommodated by others working extra hours at least as much as she accommodated them during that period of time. While there is some evidence that Petitioner was subjected to a requirement of submitting doctors' excuses in some situations when other employees were not, this appears to have been a function of haphazard on-site management and on-going personality conflicts within the organization, not the result of any sexual bias. In fact, when Petitioner complained to the Respondent's internal Equal Employment Opportunity Office and upper management was made aware of the situation, efforts were made to adjust the problem. However, this also was not an issue under the terms of this case. Both Petitioner and Mr. McCluney testified that their male supervisors and Robin Robinette abused sick leave and vacation time. Their testimony was so vague as to have proven nothing, but it was also irrelevant to the narrow issue of this cause--whether or not excessive weekend shifts and excessive work hours were imposed on Petitioner because of sexual discrimination. It was, however, established that, having obtained prior approval from his superiors, Mr. Santangelo was permitted to take off time to teach a 2:00 to 3:00 p.m. class at Santa Fe Community College each Monday through Friday in 1986 and was further permitted to make up the work time. It was also established that Mr. Santangelo was allowed to come in late and work late to make up about fifteen minutes he missed each of his regularly scheduled work days by arriving late from teaching an 8:00 to 9:00 a.m. class Mondays through Fridays during 1987 and 1988. This does demonstrate some minor disruption of the work schedule by a male supervisor, but it falls short of establishing any disparate treatment between Petitioner and her male employee counterpart or any disparity of treatment of Petitioner by causing or requiring Petitioner to work extra hours or different hours on the weekend due to her sex.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order that the Petition be dismissed. DONE and ENTERED this 24 day of July, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24_ day of July, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-7298 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-3, 8-10 Accepted except for subordinate, unnecessary, or cumulative material 4-5, 11-13, Accepted as modified for clarity, to more 15 closely conform to the record and to address the issues raised herein. 76 [sic], 7, Accepted in substance, but modified for greater 14 accuracy and to eliminate legal argument. Respondent's PFOF: Respondent waived filing posthearing proposals. COPIES FURNISHED: Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602 Mary Marshall, Esquire Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113
The Issue The issue in this case is whether the Petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case. At the hearing the Respondent offered eleven exhibits into evidence and presented the testimony of two witnesses, Charles Crozier and Sam Visconti. The Petitioner offered two exhibits, both of which were rejected. The Petitioner did not call any witnesses to testify on his behalf. He expressly declined to be sworn as a witness and testify on his own behalf, even after being specifically advised of his right to do so and being specifically advised that no findings of fact could be made on the basis of his unsworn assertions.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Leroy Williams-El, commenced his employment with the Respondent, Florida School for the Deaf and the Blind, in 1977. His last position was Dorm Supervisor I, which position he had held since the 1980-81 school year. The position Petitioner held was somewhat critical in that not only did he have to oversee the portion of the dormitory that was assigned to him, but he was also specifically in charge of the care and safety of some ten or twelve students. The Petitioner was a permanent employee, but his work period coincided generally with the school year and ran for ten months, generally from August to June each year. The Petitioner's last official work day was June 11, 1985. He was not in a work status during the summer of 1985. The dorm supervisors were supervised by Charles Crozier, Director of Student Life. At the end of the 1985 school year, the dorm supervisors remained at the school for approximately a week after the students had left and the administration conducted a post-planning week. During the post-planning week, Crozier met with the employees, discussed the upcoming 1985-86 school calendar, and Petitioner and the other dorm supervisors were told that their date to report back to work was August 26, 1985. In addition to discussing the return date with the various employees at the June post-planning meeting, Crozier, under date of August 21, 1985, mailed a letter to the Petitioner at his last known address as it appeared in the school file, that is, 75 1/2 Lincoln Street, St. Augustine, Florida 32084, reminding the Petitioner that his return date for reporting back for work was August 26, 1985. The Petitioner did not return to work as instructed on August 26, 1985. On August 27, 1985, the Petitioner called Crozier and advised Crozier he had been unable to report to work on August 26, 1985. He was advised by Crozier that he must report to work on Thursday, August 29, at 8:00 a.m. (Exhibit 2) The Petitioner did not report to work on August 29, but instead again called Crozier. Crozier, at this point, got the personnel officer of the school, Sam Visconti, on the phone with him. During the conversation on August 29, 1985, the Petitioner requested that the school "transfer" him to a position with the Department of Health and Rehabilitative Services in Miami. Crozier and Visconti both explained to him that the school had no authority to "transfer" the Petitioner to another job with another agency in another city. He was told that he should report to work immediately or submit a request for leave without pay. At the time of Petitioner's telephone call on August 29, 1985, Crozier had already prepared a letter dated August 29, 1985, advising the Petitioner that inasmuch as he had failed to report to work on August 26 and had not reported on August 29 as directed, he was being given an official reprimand. He was further advised that if he did not contact Crozier by September 4, 1985, he would be suspended without pay and failure to report to work would result in his termination. The Petitioner did not report to work on September 4, 1985, as instructed. On September 6, 1985, Crozier received a call from Lynn Rowe, Visconti's assistant in the personnel office, relaying a telephone call from a lady purporting to be the Petitioner's sister. Ms. Rowe was inquiring whether or not Crozier had any instructions for the Petitioner. Crozier advised Ms. Rowe that the Petitioner was to report to work by the time his normal work week would start, which would be Sunday, September 8. The Petitioner did not report to work on September 8, September 9, or September 10, 1985. The Petitioner did not call in and make contact with Crozier or Visconti on any one of those days. When the Petitioner did not report to work for those three days, Crozier again contacted Sam Visconti, the personnel officer, and reported this fact to him. At no time during the period from August 26 through September 10, 1985, did the Petitioner request from Crozier or Visconti, the personnel officer, annual leave, leave without pay, or any other type of approved leave. The conversations he had with Crozier and Visconti concerned a request that he be "transferred" to a job with the Department of Health and Rehabilitative Services in Miami. On September 11, 1985, after Crozier advised Visconti of the Petitioner's failure to report to work, Visconti prepared a dismissal letter under the date of September 11, 1985. This letter summarized the chronology of events concerning Petitioner's failure to report to work and advised the Petitioner that he was considered to have abandoned his position. Petitioner was further told of his right to seek a determination and review of his abandonment. The letter of September 11, 1985, was mailed to the Petitioner's last known address in the personnel file, which was the St. Augustine address. Late in the afternoon of September 11, Petitioner called Visconti and informed him of the new address in Miami, Florida. Visconti then sent an additional copy of the same letter to Petitioner on September 13, 1985, to the Miami address. The Florida School for the Deaf and the Blind is a separate state agency and is not in any way connected with the Department of Health and Rehabilitative Services. Furthermore, the Florida School for the Deaf and the Blind has no offices or positions available in the Miami area. Visconti and Crozier discussed with Petitioner his repeated requests for a "transfer" on more than one occasion and repeatedly advised him the Florida School for the Deaf and the Blind had no authority to transfer him to a different job with another state agency. At no time did the Petitioner request a leave of absence from Visconti. Visconti advised the Petitioner of the critical nature of his position as a Dorm Supervisor I and explained to him the difficulties created by Petitioner's failure to return to work. Visconti further advised the Petitioner that if he wanted a leave of absence, the personnel officer had to receive the request for the leave of absence in writing and the president of the school would consider the request after it had been received. It was imperative, however, that the Petitioner either bring or mail in a written request for a leave of absence. The Petitioner did not send a request for leave of absence to the school. The last conversation Crozier had with the Petitioner occurred sometime in late October or November and concerned a request by the Petitioner that Crozier send a copy of the Petitioner's college transcripts to an HRS office in Miami. At that time the Petitioner did not request to be re-employed or to be reinstated. Crozier mailed the materials as requested. Williams did not report to the school for employment on or after August 26, 1985, and was considered to have resigned effective September 10, 1985.
Recommendation Based on all of the foregoing it is recommended that a Final Order be issued concluding that the Petitioner abandoned his position and that his petition should be dismissed. DONE AND ORDERED this 11th day of July 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July 1986. COPIES FURNISHED: Mr. Leroy Williams 1360 N.W. 199th Street Miami, Florida 33169 Mr. Leroy Williams-E1 10566 McLaurin Road Jacksonville, Florida 32216 Mr. Samuel R. Visconti Personnel Officer Florida School for the Deaf and the Blind 207 North San Marco Avenue St. Augustine, Florida 32084 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32301 Gilda H. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Richard L. Kopel, Esquire Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the findings of fact proposed by each of the parties. Findings proposed by Petitioner The rulings which follow immediately below refer to the five (5) unnumbered paragraphs which appear under the caption "Facts To Examine" in Petitioner's post-hearing document titled Order To Commence On Final Argument. The paragraphs are referred to in the order in which they appear. First paragraph on first page: First sentence is rejected as constituting a conclusion not supported by the evidence. The last sentence is accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence. First paragraph on second page: The first two sentences are accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. Second paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence. Third paragraph on second page: This paragraph is rejected as constituting argument rather than proposed findings. Fourth paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence. Findings proposed by Respondent All of the findings proposed by the Respondent have been accepted with a few editorial modifications in the interest of clarity and accuracy. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION LEROY WTLLlAMS-EL, Petitioner, vs. DOA Case No. AB-85-18 DOAH Case No. 85-3600 FLORIDA SCHOOL FOR THE DEAF AND BLIND, Respondent. /
Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner, Ms. Coda, began working for the Council as a project counselor in August, 1989, dealing with AFDC referrals. In June, 1990, she was also assigned unemployed parents cases in the Council's Dade City office. In February, 1991, she started experiencing personal problems. Her marriage of 33 years was in trouble and this affected her. She immediately sought medical help. She had a young daughter, who was getting married, but Petitioner was not in good health. She had high blood pressure and was 50 pounds overweight. Her doctor put her on a diet and an exercise regimen which she carried over to her work. In June, 1991, F. Shaheen left her position with the Council as a counselor in New Port Richey and recommended to Petitioner that she apply for the vacated position there because it would have been much closer to her home. Petitioner did apply but was told by her supervisor, Mr. Steinberg, that she would still have to handle her unemployed parent clients in Dade City if she got the assignment. This would not have helped her, so she withdrew her request. In July, 1991, Petitioner came to work one day and found Mr. Steinberg and others going through her records. She was thereafter given a reprimand and a three day suspension for poor records, which she accepted. This was stressful for her because she had never been reprimanded before. In late July, 1991, she went to see her doctor because of a gall bladder attack. The doctor recommended she have surgery to remove it during which he would also do a laporoscopic examination. When she went in for the work-up, a nodule was found on her left lung. The doctor recommended it be removed because he thought it might be cancer. In October, 1991, Ms. Coda found out that her husband, with whom she was still having trouble, was living with another woman. When she went back to the doctor at that time, he said the nodule had enlarged and recommended immediate surgery. Ms. Coda had already planned a vacation for that time, but when her sister stated that she had arranged for Ms. Coda to get a second opinion on her condition at the Sloan-Kettering Cancer Center in New York, Ms. Coda took her vacation leave and went there. Before leaving, she told Mr. Steinberg where she was going and he questioned her need for a second opinion. Nonetheless, on January 8, 1992, Ms. Coda, who had decided to have the recommended surgery, advised her supervisor that the operation was scheduled for shortly thereafter, but before it could be done, on January 17, 1992, she was advised that her insurance would not cover the cost of the operation if done in New York. She immediately contacted her office and told them what was happening. She said she was coming back to the local area and was waiting for the airline to get her a seat for her return, and advised the staff that she would be back as soon as she could. Notwithstanding, on January 13, 1992, Mr. Steinberg, by letter, advised her that he was aware she had not had the surgery, complained that she had not contacted him for 10 days or provided the requested physician's statement to support her absence, and further advised that if she did not contact him regarding her intentions as to work, he would terminate her for absence without leave. She returned to work on January 20, 1992 Ms. Coda also received a memorandum from Mr. Steinberg, dated January 24, 1992, advising her of his receipt of reports of her substandard performance, directing her to return to work immediately, pending her surgery, and, in addition, outlining the specific tasks upon which he wanted her to concentrate. When she got back to work, she was told not to deal with clients and was counselled by both Mr. Steinberg and the Council Executive Director, Mr. Burlingame, repeatedly, about her failure to communicate with the office. Mr. Burlingame recognized she was under stress but nonetheless threatened her with dismissal which would result in her losing her health insurance coverage. Mr. Burlingame told her to get her health problems resolved and the operation scheduled, but also advised her she was not to handle clients. Ms. Coda accepted this because she believed that if she fought the reprimand she would be discharged. The operation was set for February 10, 1992. When she contacted her physician and told him what was going on, the medications for stress were increased. Nevertheless, Mr. Steinberg showed her no sympathy. On February 1, 1992, Ms. Coda received a reprimand for previous misconduct which allegedly occurred in January. She thereafter submitted a letter from her doctor which indicated she would be out of work until at least the end of April. Ms. Coda left the hospital after her surgery on February 18, 1992 and went home in the care of a housekeeper and nurse. The extent of her surgery, which left her with 42 stitches on her left back, made it difficult for her to do much because she is left handed. She was also given extra pain medications due to a rib which was broken during the operation. She was not required to undergo either radiation or chemotherapy because her cancer was rated as stage one. She does not know the current status of her health because, since she has been discharged, she cannot afford to go in for the checkups. She was able to drive when she came back to work, however, and she could write by hand, but her arm got tired if she had to write more than usual. She could use the phone and could interview clients. During the third week of March, 1992, even though Ms. Coda had submitted a letter from her doctor indicating she should be off work until April, she was called by Mr. Steinberg and asked to come back to work early because the other counselor had to take off for elective surgery. Her primary doctor did not want her to go back to work and she explained her limitations to Mr. Steinberg who replied that in that case she would have to be replaced. Because she had a lot of surgery follow-up appointments to be met and needed her health insurance coverage, she got another doctor to give her a limited work release conditioned upon her being placed in an area where there would be no smoking, no dust, no chemicals, and, though not specifically stated therein, for no more than six hours per day. Ms. Coda went back to work on April 22, 1992. She was put into a retraining program but she considers it to have been more an update of procedures implemented during the period of her absence. She does not consider it to have been retraining because of poor performance. Evidence to the contrary, from Mr. Burlingame and her coworkers is more persuasive, however. After about two weeks back on the job, for reasons unknown to her, Ms. Coda's office was moved from the front of the building to the rear where, she contends, all the smoking was done. As she relates it, the smokers kept the rear door to the outside open so they could hear the phone if it rang, and she asserts there was someone outside the door smoking seven or eight times a day. Others said she was moved because of her loudness. Ms. Coda was in the office for four weeks after her surgery. During that time, she kept her door closed because of the smoke which would be blown back into the building through the open back door. Her requests to have the back door to the outside kept closed were refused and this added stress. In addition, she was required to commute between the office in New Port Richey and the office in Dade City to manage the unemployed parent program. These allegations of stress and working conditions are confirmed by the testimony of Mr. Rivera, her cousin by marriage, and Ms. Gonzalez, an employee of the Department of Labor and Employment Security who was aware of the situation. Ms. Coda claims that throughout the time she worked for the Council, she was never advised of any client complaints against her, but, eventually, was fired by Mr. Burlingame who used as a reason her poor performance. He told her he had received complaints of her lack of empathy toward clients. She denies this and claims to be very empathic. She believes her dismissal was a culmination of the harassment she had received from Mr. Burlingame. He had told her he wanted to be in first place in a case competition, but it was impossible to achieve this within the three weeks available. She also claims he was unfriendly toward her and would not speak to her, though he was quite friendly to others. In substance, she claims, her firing was due to her medical problems and the fact that they would add to the cost of health insurance paid by the Council. Mr. Burlingame places a somewhat different perspective on Petitioner's story. As he relates it, Petitioner was hired to work with extremely disadvantaged clients who experience many barriers to employment. She was to evaluate the clients to select the best program for them and then to work with the clients to see they successfully completed the program and went to work. The New Port Richey office case load is from one hundred twenty to one hundred sixty clients per counselor. The Dade City case load is much smaller, with each counselor managing from twenty to fifty or sixty clients. Petitioner worked, primarily, in the Dade City office with one other counselor, Ms. Phelps, and a receptionist, marketing representative and office manager. Mr. Steinberg was the operations supervisor physically located in the New Port Richey office, but he filled in as a counselor in the Dade City office in the absence of Ms. Phelps. The criteria for employment as a counselor with the Council includes a four year degree in psychology or social work and two years experience. Petitioner did not meet these criteria, but she was hired because she was what they could get for the salary they paid. The salary levels for counselors are now much higher and they are able to attract better qualified people. Mr. Burlingame made the final decision to terminate Petitioner based on Mr. Steinberg's recommendation for dismissal. When Burlingame received this recommendation, he called Petitioner in to his office in New Port Richey, on June 30, 1992, to hear her side of the story. During their conversation, he told Petitioner that some clients had expressed concern about working with her and he asked her to explain. In response she became hostile and defensive, and it became clear to him that she was out of control. At that point he terminated her employment. By this time, Petitioner had received several prior reprimands and Mr. Burlingame was concerned that she was not keeping up the required documentation which supports the Council's expenditure of federal funds. She had trouble following rules and was repeatedly counselled about doing audit ready work. It was clear she did not develop a clear plan for client direction. Much of this was evident long before she was ever diagnosed with cancer and had nothing to do with her absences on that account. Mr. Burlingame's agency follows the state's anti-harassment policy. He supports treating employees and clients with dignity and respect. The policy made clear an alternate avenue for voicing complaints by employees, but Ms. Coda never filed any complaint with him or the alternate. By the same token, he was not aware of any smoking problems at the Dade City office, and he has no knowledge of any smoking inside the building after promulgation of the Council's smoking policy. Employees smoked outside the building and he believes that even if the door was left open for phone purposed, the building dynamics would tend to take the smoke out from a building rather than into it. In any case, neither Petitioner nor anyone else ever complained to him about smoke conditions in the office. Petitioner did not discuss with Mr. Burlingame that she was going away for cancer treatment. Her leave request indicated she was making a family visit, (but this was before Petitioner's sister called with the appointment in New York). He did not know she had cancer before she left. The Council has a health plan for which it pays the premium for the employee and twenty-five percent of the premium for the family. It does not get into the approval of bills paid by the insurance carrier and Mr. Burlingame knew nothing of her condition. The second opinion she sought and the surgery she had were referred by the primary care physician. Mr. Burlingame was not a part of the decision making process in denying her surgery in New York, nor was the Council. Because of the terms of the insurance policy the Council had, Petitioner's surgery would have had no impact on the premium the Council paid in the future, and Mr. Burlingame was not concerned about the potential for increased premiums. The Council imposes a six month probationary period on new employees to give them the opportunity to become competent in doing their work consistent with federal guidelines. It was only when Mr. Burlingame felt that Petitioner had crossed the line from merely incompetent to potentially dangerous to the development of the clients that he determined to terminate her employment. Several clients were seen to be crying when they left the Petitioner, and some complained to him about the way they were treated by her. Some said they would drop out of the program rather than work with her. This is inconsistent with the thrust of the program and not good for the rating process. In addition, Petitioner allegedly did not return from leave when required. Mr. Burlingame received a memorandum from Mr. Steinberg that Petitioner had not returned and he didn't know when she would return. On January 7, 1992, Mr. Burlingame was advised by Mr. Steinberg that Petitioner would return on February 10, 1992. In reality, she came back to work on January 20, 1992 without having had her surgery. At that time, management was quite concerned about the program. January is the start of a new semester in the various tech schools and it is imperative that students be lined up for entry. All this work was supposed to have been done before Petitioner left on vacation. However, while she was gone, clients came in to check on their paperwork, and when her files were examined, they were found to be in such disarray no one could figure out what was going on. This was the second time Petitioner's files were found to be unsatisfactory while she was gone. As a result, when Ms. Coda came back to work in January, Mr. Burlingame felt it imperative she not deal with clients but, instead, work with her files to make them acceptable, especially in light of the fact she was due to have surgery and would be out for two months thereafter. She was not terminated at that time. However, after her surgery, when she was called to see if she could come back somewhat sooner than the doctor's predicted April 21 date, she said she would not be back until May, although, as was noted previously, she actually came back to work on April 22. When that was reported to him, he directed Mr. Steinberg to give her retraining in procedures upon her return. The first three items of that retraining were elementary procedures. Only the fourth segment consisted of updating. For training purposes, Mr. Burlingame equated her with a new employee who needed training in the basics of her job. Joellyn Chancey is administrative coordinator at the Council and supervises three sections, including management information. This section tracks the paperwork of the individual counselors. She found a lot of mistakes in Petitioner's paperwork which required it to be sent back for re- accomplishment - more so than with the other counselors. Ms. Chancey could cover for Petitioner on the more routine matters. It was the more complex matters which had to be returned. In her opinion, Petitioner was the worst counselor as far as paperwork was concerned. All counselors use the same coding and Petitioner would often leave off the required codes, omit required steps, and the like. When Petitioner came back to work after her surgery, she was to be retrained. There were few changes made during her absence and the training administered was mostly matters which had not changed. Most of the matters Petitioner had to do were routine and not specific to her. They consisted of matters which Petitioner should have learned over time but still got wrong on a regular basis. In addition, Petitioner had a relatively small case load compared to other counselors, managing approximately thirty cases as compared to between one hundred fifty or more for the others in the New Port Richey office. Mary Miller was a coworker of Petitioner, and while she did not work directly with her, observed her from time to time, and periodically took over Petitioner's clients when Petitioner was gone. The first time she did this, Ms. Miller found a lot of clients were not being called in in a timely manner, so she did what had to be done to bring Petitioner's cases current. On the second occasion that Miller worked with Petitioner's files, she found that all the files she had updated on her first substitution had been untouched since that time. The files were not updated as required, which could result in clients missing out on services and their income being cut off. On none of the conversations Ms. Miller had with Petitioner did Petitioner ever mention how her cancer surgery had affected her work nor did she complain about smoke in the office. In fact, Ms. Miller never saw any employees smoking in the Dade City office. She, too, has just returned from an extensive medical problem, and at no time was she ever harassed because of it or given any indication Council officials were concerned about the cost of her treatment. Agnes Phelps, a smoker, worked with Petitioner at the Dade City office, and before the nonsmoking policy came into effect, smoked in the office. After the policy was promulgated, however, neither she nor anyone else smoked inside the building and she could not detect any odor of smoke inside the building. By the same token, she cannot recall Petitioner as having ever complained about the smoke. Ms. Phelps has heard and observed Petitioner counseling clients. She found Petitioner to be somewhat loud in speech and there have been times when Petitioner wouldn't see clients without an appointment and would not try to accommodate them. Her tone of voice was "off-putting" at times and gave the impression she didn't want to be bothered. As a result, several clients determined not to deal with Petitioner and Miller took them over. As to the clients she took over from Petitioner, Ms. Miller was concerned about the non-positive termination rate, (those who did not graduate and go to work), which seemed to be a larger percentage of Petitioner's client load than with other counselors. Much of this, she believes, was due to a lack of strong relationship between the client and the Petitioner. In addition, it was impossible to track down a lot of Petitioner's clients. All this had an adverse effect on programs and clients. According to Harriet Chambers, the office manager for the Dade City office, the move of Petitioner's office was prompted by Petitioner's loudness which made it advisable to move her from the front of the building to the back. The move, decided upon by both Steinberg and Ms. Chambers, did not result in a complaint by Petitioner. Her only expressed concern was with furniture and she never requested an accommodation due to her physical condition. Ms. Chambers also had the opportunity to observe Petitioner's interaction with clients. Petitioner's voice was high pitched and clients would come out of her office either angry or in tears. Often Petitioner would decline to see clients without an appointment- a practice contrary to the Council's policy to treat clients with dignity. Petitioner would also characterize clients as dead beats, lazy, back stabbers, no good, and the like in dealings with other agencies. This, too is not appropriate. When Petitioner left for New York, she told Ms. Chambers she was going to see a doctor for a second opinion, but the office had trouble finding out when she would be coming back. Petitioner did not return on time, and failed to meet with clients with appointments who came in as scheduled. During 1992 Melissa G. Perry was a client of Petitioner to whom she went with problems relating to day care and the like. Ms. Perry expected Council employees to help her get a job, give her financial advice, and raise her self esteem. This did not happen, however. On one occasion, she had a complaint about the manager of her day care facility and called on Petitioner for assistance. Petitioner agreed to see her if she would hurry over. When Ms. Perry explained the problem, Petitioner dismissed it saying it was not her problem. As a result, when Ms. Perry had other problems, she didn't want to talk to Petitioner because Petitioner showed no compassion or understanding. In addition, according to Ms. Perry, Petitioner was loud and cold and gave the impression she didn't care about her. This hurt Ms. Perry's feelings and lowered her self esteem. The evidence, therefore, indicates Petitioner was discharged because she was rude, unprofessional and uncaring in her treatment of her clients. Her discharge had nothing to do with her physical condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for Relief filed in this matter by Anna de la Rosa-Coda, against the Private Industry Council of Pasco County, Inc. be dismissed. RECOMMENDED this 6th day of January, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1995. COPIES FURNISHED: Anna de la Rosa-Coda 7484 Canterbury Street Spring Hill, Florida 34606 Alfred W. Torrence, Jr., Esquire Thornton, Torrence & Gonzalez, P.A. 6645 Ridge Road Port Richey, Florida 34668 Sharon Moultry Clerk Commission on Human Relations John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 26, 2011.
Findings Of Fact Petitioner, Teresa Urbana, began employment with Sanmar Corporation (Sanmar) in August 2008 as a seasonal employee and worked there until November 2008. She was rehired in July 2009 in a Re-stocker position. She was promoted to Order Processor and was made a full-time regular employee later that year. Sanmar is a distributor of promotional apparel and accessories to companies that sell promotional apparel. The Jacksonville location is one of seven distribution centers (DC) throughout the country. The Jacksonville DC fulfills customer orders by receiving, picking, checking, packing and shipping them. Respondent is an employer as contemplated by chapter 760, Florida Statutes. An Order Processor is responsible for picking and checking the order, and then packing the order for distribution to Sanmar's customers. The position description for Order Processor includes the following: PHYSICAL DEMANDS: While performing the duties of this job, the employee is constantly required to walk and stand. The employee is frequently required to reach with hands and arms, handle or feel product, to pull/push cart with product, grasp and perform repetitive hand, wrist and arm motions. The employee is frequently required to climb, kneel/squat, bend and carry. The employee occasionally lifts and/or moves up to 40 pounds, and seldom lifts and/or moves up to 50 pounds. Specific vision abilities required by this job include close vision, color vision, peripheral vision, depth perception and ability to adjust focus. WORK ENVIRONMENT: Work environment is moderately noisy. The employee is occasionally required to work near conveyor systems. There is exposure to dust and changes in weather conditions. Employee must be able to handle stress that is involved in meeting strenuous customer deadlines, working in high volume areas, and be flexible and able to interact with employees at all times. Paul Rhodes is the Distribution Manager and Alice Torres is Human Resources Manager for Sanmar's Jacksonville DC. Ms. Torres reports to Olivia Thurmond, Senior Manager of Human Resources. Ms. Thurmond is in the corporate headquarters for Sanmar, which is located in Issaquah, Washington. Sanmar's Employee Handbook includes an Equal Employment Opportunity Policy, an Anti-Harassment and Non-Discrimination Policy, and a Reasonable Accommodation Policy. Petitioner received a copy of the Employee Handbook. Allegations Related to Disability On April 21, 2011, Petitioner approached Ms. Torres to inform her of pain Petitioner was having in her wrists and hands. Petitioner informed Ms. Torres that she believed that this condition was work-related. With the help of Ms. Torres' assistant, Yadira Batlle, Petitioner completed an Accident/Incident Report. Ms. Batlle actually completed the form based on information provided by Petitioner, because Petitioner is not fluent in English, as her primary language is Spanish. The Accident/Incident Report was signed by Petitioner and references carpel-tunnel in both hands as the description of the injury. On that same day, Sanmar provided Petitioner with contact information for Solantic Baptist Occupational Health (Solantic) so she could receive evaluation and treatment for her injury which Petitioner claimed was work related. While there was some dispute as to whether Petitioner's condition was work related and covered by workers' compensation, it is undisputed that Sanmar reported the injury to its workers' compensation carrier and Petitioner did receive benefits and medical treatment through workers' compensation. On April 22, 2011, Petitioner was evaluated at Solantic. As a result of her evaluation, Petitioner was released to return to work with a work restriction of wearing wrist braces. Petitioner continued to perform her Order Processor job duties wearing wrist braces. Petitioner also was evaluated by her personal physician, Dr. Esquivia-Munoz, who provided a note dated June 1, 2011, which stated as follows: This patient has bilateral moderate carpal tunnell [sic] syndrome worse at right wrist, which is interfering with her regular duties and regular activities for which she will need surgical decompression in the future. When Ms. Torres received this doctor's note, she explained to Petitioner that the note did not include any specifics as to any work restrictions. As a result, Ms. Torres advised Petitioner she could not allow her to return to work until the company received work restrictions from her doctor. Therefore, Sanmar placed Petitioner on a leave of absence under the Family and Medical Leave Act (FMLA). On June 2, 2012, Ms. Torres sent a fax to Dr. Esquivia-Munoz with a request that he complete an attached certification of Petitioner's health condition. He completed the form, but the information he provided essentially repeated what he wrote on the June 2, 2011, note, and did not provide specific working restrictions which Sanmar requested and needed to be able to provide appropriate and safe working restrictions for Petitioner. Ms. Torres forwarded these documents to Christy Hammond, Sanmar's Leave Supervisor, who is located in the Washington office. On June 3, 2012, Lori Shutter, Sanmar's Benefits Manager, faxed a request to Dr. Esquivia-Munoz, requesting that he complete an enclosed "release to return to work" form identifying work restrictions. She also attached a position description for the Order Processor position. Sanmar did not receive a completed form or further specific work restrictions from Dr. Esquivia-Munoz despite this request. Petitioner went back to Concentra, the workers' compensation medical provider, for further evaluation. Concentra identified her activity status as "modified activity" and identified her work restrictions as no pushing, pulling or lifting over zero pounds, and referred her to a hand surgeon. The facsimile shows that this information was faxed to Sanmar on June 13, 2011. Ms. Torres forwarded this information to Ms. Hammond in the corporate office, and discussed it with Mr. Rhodes. The Order Processor position involved frequent reaching, pushing, grasping, and performing repetitive hand motions. Pushing, pulling, and lifting are essential functions of the Order Processor job. Accordingly, the work restrictions received from Concentra prevented Petitioner from performing essential functions of the job of Order Processor, with or without reasonable accommodations. Sanmar found light-duty work that Petitioner could do within the work restrictions as set forth by Concentra. She was assigned to do "go-backs," which is part of the order processing job, but not the entire job. Go-backs are items, such as hats or t-shirts, found in the wrong bins. The go-back work required Petitioner to use a computer to find the product's correct location, write down that location, and carry the product to the correct location. There is no regular go-back position at Sanmar. This was a temporary assignment created to accommodate Petitioner by eliminating many of the regular functions of the Order Processor position, including pushing, pulling, picking, and packing items to fill customer orders. On June 13, 2011, Ms. Torres called Petitioner to advise her that Sanmar had light-duty work within Petitioner's work restrictions. Petitioner returned to work on June 15, 2011, performing go-backs at her regular rate of pay, i.e., as when she could perform all functions of the Order Processor position. On June 17, 2011, Petitioner submitted a Leave of Absence Request Form, requesting to commence leave on June 20, 2011. Ms. Torres then provided a Notice of Eligibility and Rights and Responsibilities for leave under FMLA to her. This document notified Petitioner that she was eligible to receive FMLA leave, and further notified her that she needed to provide sufficient certification to support her request for FMLA leave by July 1, 2011. On June 20, 2011, Petitioner clocked in at work at approximately 12:24 p.m., after an appointment with Petitioner's hand specialist, Dr. Greider. Petitioner immediately went to the Human Resources office and provided a note from Dr. Greider which confirmed that she had an appointment with him that morning, and left his office at 11:30. Petitioner also provided a doctor's note from Dr. Greider detailing Petitioner's work restrictions. She gave the note to Ms. Batlle, because Ms. Torres was out of the office at that time. The note reads as follows: LIGHT DUTY WORK RESTRICTIONS No repetitive gripping and pinching. No repetitive pulling and pushing. No lifting greater than 5 pounds. No production keying (until further notice) Frequent rest breaks- 5 minutes per hour. Effective until pending surgery. Ms. Batlle left copies of these doctor's notes for Ms. Torres, along with a handwritten note stating that Petitioner was going home for the day. Ms. Thurmond happened to be visiting the Jacksonville DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes, along with Ms. Hammond by telephone, discussed Petitioner's new work restrictions and concluded that, because processing go- backs required keyboarding, gripping and pinching, Petitioner could no longer perform that light-duty work.2/ Accordingly, Sanmar approved Petitioner's request for FMLA leave. Beginning June 21, 2011, Petitioner began taking the FMLA leave she had requested. During this leave, Petitioner had surgery on her right hand on July 21, 2011. Petitioner remained on FMLA leave until September 13, 2011, at which point she had exhausted her FMLA leave entitlement and had still not been released to work. Rather than terminating Petitioner's employment at that time, Sanmar provided additional leave until the company was able to determine whether Petitioner would be able to return to work. Sanmar provided Petitioner an FMLA Designation Notice which informed her that her absence from September 14 through September 25 would be provided to her "as a reasonable accommodation under the Americans with Disability Act (ADA)." On September 16, 2011, Ms. Hammond prepared a letter to Dr. Greider outlining the modified work description in doing go-backs, and asking him to advise whether or not she would be able to perform those duties. Dr. Greider faxed a reply to Ms. Hammond on September 20, 2011, advising that the activities described in Ms. Hammond's letter would be acceptable. Ms. Torres and Ms. Hammond prepared a letter to Petitioner dated September 22, 2011, advising her that Sanmar had received a written confirmation from Dr. Greider that she had been approved to return to work with the modified duties (performing go-backs). The letter further notified Petitioner that she was expected to return to work on September 26, 2011, which she did. Ms. Torres did not receive any complaints from Petitioner during the September to November timeframe regarding her ability to perform the go-backs duty. On November 2, 2011, Petitioner provided Ms. Torres with a note from Dr. Grieder confirming Petitioner would be out of work for surgery on her left hand from November 7 through 10, 2011. The note states the following: Patient is scheduled for hand surgery on 11/7/11 and may remain out of work from date of surgery until 11/10/11 at which point patient may return to work with no use of the left hand until follow up appointment on 11/21/11. Ms. Torres and Petitioner had a discussion regarding Dr. Greider's note during which Petitioner expressed doubt that she would be able to return to work November 10 as she still had restrictions on the use of her right hand and did not know what kind of work she would be able to perform after surgery on her left hand. Ms. Torres than contacted Ms. Hammond via e-mail requesting her assistance in confirming the work restrictions, if any, on Petitioner's use of her right hand. On November 8, 2011, Ms. Hammond, through the company's workers' compensation carrier, received confirmation from Dr. Greider's office that she was released from work restrictions with regard to her right hand as of October 17, 2011.3/ On November 9 and 10, Petitioner left voice mail messages for Ms. Torres and her assistant regarding her inability to work. On November 11, 2011, Petitioner did not report to work. Because this was the date that had been indicated by Dr. Greider as the date she was released to return to work (regarding her right hand), and after receiving guidance from Ms. Hammond and input from the workers' compensation carrier, Ms. Torres called Petitioner and informed her that Sanmar had not received any additional information from Dr. Grieder and advised Petitioner that it was Petitioner's responsibility to obtain a new note from her doctor if she could not work. Ms. Torres reminded Petitioner that she needed to come in to discuss her restrictions and possible light-duty work. Ms. Torres received another call from Petitioner on November 14, 2011. Ms. Torres reiterated to Petitioner that she needed to report to work with her restrictions so Sanmar could attempt to accommodate her appropriately. Petitioner reported to work later that same day. She met with Mr. Rhodes and Ms. Torres to discuss her ability to work and what accommodations would be necessary. Mr. Rhodes first advised Petitioner that she would be doing go-backs which could be performed without the use of her left hand. When Petitioner expressed concern about her ability to perform that task, Mr. Rhodes agreed to assign her a temporary light-duty position auditing the restock until they could review the matter further. Petitioner agreed to perform the restock work. Also on November 14, 2011, Ms. Torres received a fax from Dr. Grieder's office which attached the same November 2, 2011, note regarding Petitioner's restrictions. Nothing in the November 14, 2011, fax from Dr. Grieder's office changed Petitioner's work restrictions. Auditing the restock is not a regular position at Sanmar, but is one part of the many duties of the inventory department. In offering this temporary work to Petitioner, Sanmar eliminated many of the essential functions of the Order Processor job. Petitioner left the November 14 meeting with Ms. Torres and Mr. Rhodes and worked for about two hours. After about two hours, Petitioner apparently fainted and left work in an ambulance which transported her to the hospital. That was the last day Petitioner worked for Sanmar. Petitioner received notes from Dr. Greider dated November 21, 2011, and December 9, 2011, listing the same light duty restrictions (i.e., no repetitive gripping and pinching, no repetitive pulling and pushing, no lifting greater than five pounds, no production keying, and frequent rest breaks), valid for the left hand only. Petitioner also received a note from Dr. Greider dated January 23, 2012, indicating that she may continue previous restrictions until February 6, 2012, at which time the patient may return to work full duty. However, Ms. Hammond, Ms. Thurmond, and Ms. Torres, all testified that they did not receive this note. Petitioner was seen by an orthopedic doctor in August 2012. The doctor's note indicates that she has a permanent work restriction which precludes her from lifting more than 10 to 15 pounds. Facts regarding disciplinary action Through an employee loan program, Sanmar approves loans to employees under certain circumstances. In late December 2010, an incident arose involving Petitioner and her request for an employee loan. On December 28, 2010, Ms. Torres heard Petitioner speaking in a loud voice outside of Ms. Torres' office. She heard Petitioner accusing her assistant at that time, Sandra Colindres, of refusing to help her with papers required for such a loan. Petitioner spoke in a tone of voice that Ms. Torres felt was not appropriate for the office. She then asked Petitioner to meet with her in her office. While in Ms. Torres' office, Petitioner complained that Ms. Colindres was unwilling to help her with the loan paperwork. Petitioner had not been scheduled to work that day. Ms. Torres informed Petitioner that the loan process had very recently been changed, and that the loan would need to be approved by Human Resources if it were determined that there was a critical need. Ms. Torres considered Petitioner's tone of voice during this conversation in her office to be disrespectful, demanding and rude. At the end of this meeting, Ms. Torres told Ms. Colindres to give Petitioner the employee loan form. When Petitioner left Ms. Torres' office, Petitioner approached a co- worker who was also in the office and began talking in a loud voice about what had just happened. Ms. Torres overheard Petitioner talking about their meeting to another employee and asked Petitioner to discuss the issue in her office. Ms. Torres told Petitioner that her conduct was disruptive, unprofessional, and unacceptable. She told Petitioner that she had caused a disturbance in the workplace, that Ms. Torres would be informing the DC manager about this incident, and that Petitioner would likely be receiving corrective action.4/ Shortly thereafter, Ms. Torres accompanied a pest control representative to the break room. When they arrived in the break room, Ms. Torres observed Petitioner telling a group of employees her version of the events in her office. The employees dispersed when they saw Ms. Torres enter the break room. When Ms. Torres turned to leave the break room, she saw Petitioner complaining to yet another group of employees about the incident. Ms. Torres considered this behavior to be extremely disruptive. Ms. Torres then asked a supervisor, Tasha Porter, to instruct Petitioner to leave the premises. Ms. Torres was relatively new to the company, and she consulted with Paul Rhodes and Olivia Thurmond to determine appropriate disciplinary action that would be consistent with the company's response to similar instances of conduct. Mr. Rhodes was out of the office from December 27, 2010, through January 2, 2011. On January 3, 2011, Mr. Rhodes and Petitioner met to discuss the December 28, 2010, incident. Tasha Porter also attended the meeting and supervisor Daniel Serrano attended the meeting as an interpreter. Mr. Rhodes also spoke to and received written statements from Alice Torres, Sandra Colindres and Tasha Porter regarding the incident. After reviewing the matter, a decision was made to give Petitioner a final Written Warning for unprofessional conduct and disruptive behavior which had taken place on December 28, 2010. Petitioner refused to sign the final Written Warning, did not acknowledge that she committed the actions described, but acknowledged that the conduct described would be unacceptable and that a person engaging in such conduct could be terminated. The final Written Warning was given to Petitioner on January 10, 2011, by Mr. Serrano, who also speaks Spanish. Prior to receiving this final Written Warning, Petitioner had not reported a disability to anyone at Sanmar. There is nothing in the record to establish or suggest that any one at Sanmar knew, perceived or regarded Petitioner as having a disability at that time. On the evening of April 18, 2011, Group Lead Terri Andrews was supervising the employees on the lo-bay floor. Employees were working overtime to get all customer orders shipped by the end of the day. Ms. Andrews was at the print station, as Petitioner approached her. Ms. Andrews directed Petitioner to report to the pack line. Petitioner told Ms. Andrews that she wanted to go home. Ms. Andrews told Petitioner again to report to the pack line and Petitioner left the floor. Ms. Andrews described Petitioner as appearing agitated. Petitioner arrived at the pack line where Becquer Rosado, another Group Lead, was directing employees where they were needed the most. Mr. Becquer saw Petitioner approaching and before he could direct her to a position, she put her hand up in the air, walked past him, and told him that she would only take instructions from Patricia Alonso and not from him. This was done in front of other employees. Patricia Alonso was a Department Lead for the pack line. A Group Lead is superior to a Department Lead because Group Leads oversee several functions, while Department Leads only supervise a single function. Employees are expected to follow the directions of both Group and Department Leads. Mr. Rosado reported this incident to his supervisor, Lori Pritchard, and completed an Employee Concern form the following day. Ms. Andrews also reported Petitioner's behavior to Ms. Pritchard, and completed an Employee Concern form on April 21, 2011. It was that day that Petitioner approached Ms. Torres to talk about pain that Petitioner was having in her wrists and hands as more fully discussed in paragraph 6 above. Petitioner was not at work from April 21 until April 26, 2011. After reviewing the Employee Concern forms, Ms. Torres met with Petitioner regarding the April 18, 2011, incident. During this meeting, Petitioner denied being disrespectful to Ms. Andrews and Mr. Rosado. After speaking to Petitioner on April 26, 2011, Ms. Torres recommended that Petitioner be terminated for her actions of April 18, 2011, because Petitioner had just received a final Written Warning for her behavior on January 10, 2011. However, Mr. Rhodes decided to give Petitioner another chance and, instead of terminating Petitioner, decided that Sanmar would issue a Final Warning Follow Up Discussion Memo to Petitioner, which was done on May 5, 2011. This Discussion Memo reiterated that any future violation of company policy by Petitioner would result in further corrective action up to and including termination of employment. During May and June 2011, and pursuant to Sanmar's Voluntary Time Out (VTO) procedure, Petitioner volunteered on several occasions to go home when production was slow and Sanmar asked for volunteers. Employees interested in VTO simply had to write their names on the "Go Home Early Sheet." Sanmar then selected employees for VTO in the order in which the employees volunteered to go home early. Petitioner's name appears on the VTO sheets in evidence, and her name is near the top of the list on most days. She was not sent home early on days that she had not signed up for VTO on the Go Home Early sheet. On June 20, 2011, after leaving the doctor's notes referenced in paragraph 18 through 20 with Ms. Battle, Petitioner proceeded to the break room where Tasha Porter, a supervisor, found her engaged in a conversation with co-workers while on the clock and not on a break. When Ms. Porter asked Petitioner why she was in the break room while clocked in, Petitioner replied that she taking her break. Ms. Porter reported this to Ms. Torres. Afterwards, Petitioner returned to work processing go-backs, although another employee was doing the keyboarding, as further explained above. As discussed in paragraph 21 above, Ms. Thurmond was visiting the Jacksonville DC on June 20, 2011. Ms. Torres, Ms. Thurmond, and Mr. Rhodes discussed the incident in the break room and decided to issue a final Written Warning to Petitioner for falsification of time records for this incident of being "on the clock" while in the break room. This was the same meeting in which they discussed Petitioner's June 20, 2011, work restrictions. Ms. Torres and Ms. Thurmond issued a final Written Warning to Petitioner at the same meeting in which they notified her that Sanmar had approved Petitioner's request for FMLA leave. The weight of the evidence shows that this took place on June 21, 2011. On or around November 3, 2011, prior to Petitioner going on leave for her second hand surgery, Ms. Torres learned of an incident involving Petitioner and her son, Manuel Sanchez, who also worked for Sanmar. Specifically, Ms. Torres learned that Mr. Sanchez may have forged Petitioner's signature on a time-off request which asked for permission to be off work on October 28, 2011. After discussing this with Mr. Sanchez, Ms. Torres concluded that he had forged his mother's name on the time-off request at her request. Sanmar considered this to be falsification of company records. This is an offense for which Sanmar has disciplined employees in the past.5/ On Friday November 4, 2011, which was Petitioner's last day at work before taking leave for her second hand surgery, Ms. Torres discussed the forged time off request with Petitioner. Petitioner admitted that she had asked her son to fill out the request and sign her name. At the end of their conversation, Ms. Torres told Petitioner not to discuss their meeting or the situation with anyone, not even Petitioner's son, because the company was continuing to investigate the matter. Despite this instruction, Lori Pritchard, a supervisor, reported to Ms. Torres that Petitioner went directly to her son and had a heated discussion with him at the print station. Although Ms. Pritchard was unable to fully understand their conversation because it was in Spanish, Ms. Pritchard advised Ms. Torres that she believed they were discussing Ms. Torres' meeting with Petitioner. Following this incident, Ms. Torres met again with Mr. Sanchez and Mr. Sanchez admitted he and Petitioner were discussing the forged time off request at the print station on November 4. Ms. Torres, however, was unable to speak to Petitioner about this incident until November 14, 2011, when Petitioner returned to work after her November 7 (second) surgery. During the meeting with Petitioner upon her return to work on November 14, 2011, (see paragraph 30), Mr. Torres and Mr. Rhodes told Petitioner the company was still reviewing the incident regarding the forged time-off request. They advised Petitioner that they had confirmation she and Mr. Sanchez discussed the forged time off request at the print station. While Petitioner denied this, she admitted she talked about the incident with her son at home, where Mr. Sanchez also resided. Ms. Torres and Mr. Rhodes believed Petitioner should be terminated for the November 4 incident, because it involved an incident of insubordination, following the previous warnings of unprofessional conduct issued In January and May 2011. However, they wanted to discuss their recommendation with Ms. Thurmond and Marty Rask, Operations Manager, in keeping with the company's normal practice. Although they planned to talk to Ms. Thurmond and Mr. Rask and, with their concurrence, terminate Petitioner later during the day on November 14, they were not able to do so because of Petitioner unexpectedly became ill on that day. This began a lengthy leave of absence from which she never returned. Mr. Rhodes and Ms. Torres recommended that Sanmar terminate Petitioner for her insubordination on November 4, when she discussed the document falsification issue with her son in violation of Ms. Torres' instructions, as well as her dishonest and evasive response on November 14, when Mr. Rhodes and Ms. Torres spoke to her about the incident. The final decision to terminate Petitioner was made on November 30, 2011. However, Sanmar did not communicate the termination decision to Petitioner until January 24, 2012. This delay resulted from circumstances related to Petitioner's medical leave and on-going workers' compensation proceedings.6/ Sanmar decided to move forward with its November 30, 2011, termination decision. Sanmar's usual practice of communicating employee termination is to inform the employee in person. However, Christy Hammond had been communicating with Petitioner and respected Petitioner's request that she not be required to come to the workplace only to be fired. Therefore, Sanmar decided to issue the termination letter via mail. Accordingly, on January 24, 2012, Sanmar sent Petitioner a termination letter signed by Olivia Thurmond. Enclosed with the letter was a documentation form explaining the reasons for Petitioner's termination, i.e., Petitioner's insubordination on November 4 and her dishonest and evasive behavior on November 14, combined with her prior discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Teresa Urbina. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2012.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Edith Rogers, was employed as a data operator with the Indian River County Health Unit, a sub-unit of the Department. She was hired by the Department on January 4, 1988 and began working for Gerry L. Waite as a data operator in October, 1988. When employees are hired by the Health Unit, they are briefed on the unit's leave policies and procedures and are given a copy of the unit's personnel policies for which each employee is obligated to sign a receipt. That portion of the handbook dealing with absences provides that when possible, employees requesting to be absent should request authorization from their supervisor in advance. If prior application is not possible, and absence is necessary, the employee is to call in at the earliest possible moment to let the supervisor know what is going on and approximately how long the employee will be absent. Respondent has complied with these policies on several occasions in the past. On July 26, 1991, a Friday, the Respondent was at her place of employment and there was no indication given that she was experiencing any difficulty. The following Monday, however, July 29, 1991, she did not report for work and Ms. Waite, her supervisor, knew from an article which had appeared in the prior day's newspaper, that Respondent had been arrested. Respondent did not call in on that day, nor did anyone else call in for her. Respondent remained in jail until August 19, 1991. Subsequent to Monday, July 29, 1991, Ms. Waite called the jail twice a week to check on the Respondent's statue. Each time the Respondent was there. At no time during that period did Respondent, or anyone else on her behalf, call her duty section and speak with her supervisor regarding the basis for her absence, nor did Respondent write a letter to explain, though she was able to do so. Mrs. Rogers did not come to work on August 20, 1991, a Tuesday and the day after her release from jail, nor did she come in on August 21 or 22, 1991, the following Wednesday and Thursday. There was no contact from the Respondent, and her absence subsequent to her release had not been authorized. Ms. Waite is satisfied that Respondent knew the abandonment provisions and the potential results of failing to appear for several days without authority since, in 1984, a similar action was taken regarding her employment with the Department in St. Lucie County, and she was deemed to have abandoned her position at that time. Respondent was seen in Walmart by another Department employee on the morning of Tuesday, August 20, 1991. At that time she was buying clothes for her 13 year old son preparatory to getting him enrolled in middle school. She admits she did not call her office on that day, however, on Wednesday, August 21, 1991, after arranging to have the power to her residence turned on and taking care of some other personal affairs, she called a friend of hers, Mrs. Brenda Troutman, who works for the Health Unit in its vital statistics division, and explained where she was. Ms. Troutman, however, was not working in Respondent's division nor was she in any supervisory capacity over her. Though Ms. Rogers claims she asked Ms. Troutman to notify Ms. Waite of her status for her, Ms. Troutman declined to do so, suggesting Ms. Rogers make the contact herself. On Thursday, August 22, 1991, Respondent did call her office and asked to speak with Ms. Waite. Unfortunately, she called at lunchtime, sometime between 1 and 1:15 PM, and neither Ms. Waite, nor anyone else in authority was there to speak with her. Respondent admits she did not leave her name at the time of that call. The evidence is clear that at no time, from the time Ms. Rogers was placed in jail in July until Ms. Waite spoke with her on the evening of Friday, August 23, 1991, did Respondent, or anyone on her behalf, make any sincere effort to contact the Unit to explain, officially, to anyone in authority where she was, the reason for her absence, and when she would be back. At that time, Ms. Rogers advised Ms. Waite that she would be back to work on August 26, 1991, but Ms. Waite told her then it was too late as she had already been processed for abandonment of her position. Ms. Waite is quite certain that Ms. Rogers is and was aware of the procedures to be used when an absence is anticipated or when it was unavoidable, because Respondent has taken advantage of these procedures and utilized them several times in the past during the period she has been working for the Department. According to Ms. Register, the employee specialist with the Department's District office, there is a difference between an abandonment action and a termination for cause. The latter is a disciplinary action and is appealable through the Public Employees Relations Commission or through union grievance procedures. The abandonment is a determination made after an unauthorized absence with a provision for review, and is more a constructive action determined on the basis of the employee's failure to appear. Respondent is quite insistent that she did not intend to abandon her position and intended to come back to work the Monday following her release, (August 26, 1991). She claims one of the reasons for her delay in going back to the office was her embarrassment in going back and facing her coworkers after having been in jail, but she contends that at all times she wanted her job back. She differentiates her situation in this case from that in the 1984 abandonment action. Then, she admits, she walked away from her job because of her addiction to cocaine. Here, she claims, this was not her intent, and she fully intended to go back to work just as soon as she was able to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered finding that Respondent, Edith Rogers, abandoned her position with the Indian River County Health Unit and resigned from the Career Service. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1992. COPIES FURNISHED: Karen M. Miller, Esquire DHRS, District 9 111 Georgia Avenue West Palm Beach, Florida 33401 Charles A. Sullivan, Jr., Esquire Post Office Box 2620 Vero Beach, Florida 32961-2620 John Slye General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether or not Petitioner abandoned her position in accordance with the terms of Rule 22A-7.010(2) F.A.C.
Findings Of Fact At all times material, Petitioner was employed as an FSDB groundskeeper. Robert "Curly" Schopmann, the Grounds Supervisor and Petitioner's immediate supervisor, considered her to be "a very good employee" during her two years of employment prior to June 19, 1990. Petitioner's performance ratings confirmed Mr. Schopmann's assessment that Petitioner's quantity and quality of work was excellent during that period of time. Petitioner suffered an on-the-job accident on March 20, 1990 for which the employer and the Department of Insurance, Division of Risk Management accepted responsibility under Chapter 440 F.S., "The Florida Workers' Compensation Law." In June, 1990, Petitioner requested that the employer provide further medical treatment by an orthopedic physician, which further medical treatment was approved and provided. As a consequence thereof, Petitioner was off work from June 19 to mid-October 1990. Dr. Charles, Petitioner's authorized treating orthopedic physician, prepared a list of "job limitations" dated October 3, 1990 (Heilmann Exhibit 2). There is no evidence Petitioner was provided with a copy of this until after her termination. Sometime between October 1 and October 5, 1990, a rehabilitation consultant/specialist and registered nurse also prepared another, slightly more stringent list of limitations (DOE Exhibit B) which was not "verified" (approved) by Dr. Charles until October 29, 1990. Since Dr. Charles did not sign this second, more restrictive list until October 29, 1990, it must be assumed that neither Risk Management nor FSDB personnel saw it until after that date. Petitioner testified that she did not see it until after her termination. Effective October 13, 1990, Dr. Charles formally released Petitioner to do light work. The day before, Petitioner received notification concerning her release for light work from Risk Management (DOE Exhibit A). In that October 12, 1990 letter, Risk Management notified Petitioner that she was to either return to her old job and do light work while receiving temporary partial disability payments under the workers' compensation law or she was to make a good faith job search among other employers as also contemplated by that law. An abbreviated list of physical limitations based on Dr. Charles' October 3, 1990 list was also given by Risk Management to the Petitioner in its October 12, 1990 letter. By mutual agreement with the FSDB personnel office, Petitioner reported for light duty work at FSDB on Thursday, October 18, 1990. Mr. Schopmann first suggested that Petitioner work at her own speed outside but acceded to Petitioner's rejection of the use of a scooter to get around and do outdoors groundskeeping when she told him the scooter was "too bumpy" for her injured back. Either of Dr. Charles' job restrictions/physical limitations lists would have permitted Petitioner to work with hand-sized garden tools, a scooter, a riding mower, or a rolling seat for 80% of her day outside with only 20% of her day inside, provided she moved around and rested as needed with no lifting over 15 pounds and no squatting, crawling, bending, twisting, rotating, kneeling, or climbing inside or outside. When she said she could not ride the scooter, Mr. Schopmann told Petitioner to pot plants and trim the plants in the pots inside the greenhouse and that when she got tired, she should sit down and answer phones in the office before returning to pot more plants in the greenhouse. This instruction was in accord with the limitations for light work placed on Petitioner by her doctor in his October 3, 1990 list of limitations. It also was within the parameters of the abbreviated list relayed to Petitioner in Risk Management's letter of October 12 and those of the more stringent list the doctor later approved on October 29, 1990. At formal hearing, Petitioner admitted that she had understood that the supervisor's instructions included answering phones in the office and that she was otherwise assigned to the greenhouse. On Thursday, October 18 and Friday, October 19 and on October 22-24, she went to the greenhouse and office but did not restrict herself to just the jobs assigned by Mr. Schopmann. Instead, she tried to do all the usual work that is required of full-time, unimpaired greenhouse personnel. This additional work was considerably in excess of the limitations placed on her by her treating physician in either his October 3 or October 29 lists of limitations and was never directly assigned by her supervisor. The Petitioner asserted that she did this additional work because she was relying on the information provided in the October 12 Risk Management letter and in a telephone conversation she had had with Ms. Battle of FSDB's personnel office prior to October 18, and because she personally had never seen either of Dr. Charles' lists of limitations. On Wednesday, October 24, 1990, Petitioner left work at noon saying that she had a doctor's appointment, which she in fact did not have. Instead, she went home to rest. On Thursday, October 25, 1990, she called in sick and, as it turned out, she did not return to work after that date. The Petitioner testified that she did not return to work after October 24 because it was too painful for her to continue the work she had attempted. On October 26, 1990, a letter was sent from FSDB by Ms. Stephanie Battle notifying Petitioner that she was expected to come to work unless she had received a doctor's statement and that she was expected to return to work no later than Tuesday, October 30, 1990. Because October 26, 1990 was a Friday, it was Ms. Battle's intention that Petitioner would receive the letter on Saturday, October 27 or on Monday, October 29, and would then be able to obtain a doctor's certificate before the employer's October 30 deadline, if, in fact, Petitioner were eligible to receive a doctor's certificate at all. The October 26, 1990 letter sent by Ms. Battle provided in pertinent part: You are required to return to your job with the approved restrictions immediately. If you cannot return to work, you must provide this office with a letter from your attending physician saying why you are unable to perform your job, what the inclusive dates are that you cannot work and the approximate date of your return. At the present time you are in an unapproved leave without pay status. I expect to hear from you no later than Tuesday morning, October 30, 1990. On October 29, 1990, petitioner telephoned Stephanie Battle and informed her that she had received Ms. Battle's October 26, 1990 letter, that she could not work, but that Dr. Charles would not give her a "no work disability slip." At that time, Ms. Battle told Petitioner that she must return to work and asked if Petitioner had told her supervisor that she could not physically do the work assigned. Petitioner admitted to Ms. Battle that she had not yet discussed the problem with her supervisor. Later on October 29, Petitioner spoke on the telephone with Mr. Schopmann. Mr. Schopmann told Petitioner that she had to come back to work on October 30 or bring a doctor's certificate saying that she could not work at all. At that time, Petitioner indicated to Mr. Schopmann that she was aware that if she did not come back to work or provide some doctor's certificate she would lose her job. Whether Petitioner was consciously aware of the abandonment rule or merely thought she would be fired for not coming to work is not clear from the record. Petitioner asserted that she called Mr. Schopmann a second time on November 1, still seeking to retain her job; Mr. Schopmann denies that such a telephone call ever took place. It does not appear that Petitioner and Mr. Schopmann ever had a meeting of the minds that Petitioner was attempting to do more strenuous work than Mr. Schopmann thought he had assigned her to do, but at no time did Mr. Schopmann urge Petitioner to work harder. In her testimony, Petitioner blamed the employer far not making her fully aware of the limitations placed on her by her doctor. Petitioner also asserted that Ms. Battle had telephoned Dr. Charles on October 24, 1990 to see if the Petitioner's job assignments in the greenhouse and office exceeded his prescribed limitations for Petitioner and, further, that in so doing, Ms. Battle had misrepresented to the doctor the tasks that Petitioner was, in fact, doing and that Petitioner believed that it was due to Ms. Battle's misrepresentations that Dr. Charles would not give Petitioner a certificate of "no work." Ms. Battle confirmed that she had called Dr. Charles at some point and represented to him the type of light work that she understood from Mr. Schopmann that Petitioner was doing in the greenhouse and the office. However, at the time she telephoned Dr. Charles, Ms. Battle also did not know that Petitioner had physically attempted more than she had been assigned to do by Mr. Schopmann. At the time of her phone call, whenever it may have been, Dr. Charles told Ms. Battle [admissible hearsay pursuant to Section 120.58(1) F.S.] that Petitioner could do the light work described by her and assigned by Mr. Schopmann. Petitioner admitted that she did not consult her doctor in his office on October 24-25, that she never spoke personally with Dr. Charles during this period of time or tried to get a "no work certificate" from him personally prior to October 30, 1990, and that she dealt with him solely through his receptionist. However, the doctor's October 29, 1990 list of limitations and Petitioner's recitation of what the receptionist told her [admissible hearsay pursuant to Section 120.58(1) F.S.] supports a finding of fact that at all times material, Dr. Charles felt Petitioner could continue to do the light work actually assigned by Mr. Schopmann, a description of which had been related to him by Ms. Battle, and that the doctor also felt that the Petitioner could do all the light work which the doctor later listed on his October 29, 1990 list. Petitioner never presented a medical certificate to her employer. There was no evidence at formal hearing of whether or not the Petitioner had any accrued annual or sick leave that she could draw on, but it is clear that she never applied for authorized leave. The Petitioner never returned to work. On November 1, 1990, Mr. Schopmann notified the FSDB personnel office that Petitioner had not returned to work for three consecutive days, that he considered her to have abandoned her position, and that he recommended her dismissal on that basis. (DOE Exhibit D) In a letter dated November 2, 1990, Mr. Sam Visconti, FSDB Personnel Director, notified Petitioner that she was deemed to have abandoned her position due to her absence on October 29, 30, 31, and November 1 (sic, see Findings of Fact 12- 13), and that she was dismissed based on Rule 22A-7.010(2)(a), F.A.C. That letter reads in pertinent part: You failed to report or call in to work for four (4) consecutive work days on October 29, 30, 31, and November 1, 1990. In accordance with Chapter 22A-7.010(2), of the Florida Administrative Code, State Personnel Rules and Regulations, you have abandoned your position. Abandonment of position is considered and treated as a resignation from your job. Your resignation is effective 12:01 a.m., November 2, 1990. Petitioner had been on unauthorized leave without pay since October 24, 1990. However, due to the terms of Ms. Battle's October 26, 1990 letter, the only three days which could be legitimately counted against Petitioner under the abandonment rule were October 30 and 31, and November 1, 1990. Petitioner is angry about the on-the-job accident and how it occurred. She testified that as of the date of formal hearing she continues to see Dr. Charles professionally and that she would not do so if she were not in pain and really injured, but she produced no medical evidence that she was physically unable to report for work at all on October 30 and 31, and on November 1, 1990 or that she was unable on those dates to do the jobs contained in Dr. Charles' October 29, 1990 list of limitations.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that Petitioner abandoned her position by unreasonable absence on October 30 and 31 and November 1, 1990. DONE and ENTERED this 30th day of April, 1991, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1991.
