Findings Of Fact Respondent was employed by Petitioner from December, 1982 to December, 1987 as a tariff clerk, a permanent career service position. On September 23, 1987 Respondent became ill and left work without informing her supervisor, Jill Hurd, or her co-workers. Hurd was available on September 23 and 24, 1987 if Respondent had tried to explain her absence or request leave authorization. Respondent presented Health Status Certificates to Petitioner signed by M. R. Grate, Jr., M.D., dated October 30, November 11 and 18, 1987 which certified her inability to return to work from October 27 through November 30, 1987, during which time she was under his care. On the basis of these certificates, Petitioner authorized her sick leave from October 27 to November 30, 1987. Respondent did return to work on December 2, 1987, but was again absent on consecutive work days of December 3, 4 and 7, 1987. On December 3, 1987, Respondent sent a note to Hurd, via her husband, stating she did not feel well and would not be in to work. On December 4, 1987 her husband again brought Hurd a note stating Respondent would not be in because her baby was ill. Respondent's husband called Hurd on December 7, 1987 to state that she was still ill and would not be in to work. Hurd stated that Respondent needed to get back to work. At no time did Respondent request leave for December 3, 4 and 7, 1987, nor was she approved for leave. She simply informed her supervisor, Hurd, through her husband that she was not coming to work each day. Prior to these unauthorized absences in December, 1987, Respondent had received a memorandum from Hurd on January 14, 1987 setting forth specific instructions for calling in sick following a number of unauthorized absences. Respondent was specifically instructed to call her supervisor, Hurd, each morning by 8:30 a.m. when she wanted to take sick leave. Despite this instruction, Respondent never called Hurd on December 3, 4 and 7, 1987, but simply had her husband deliver notes and messages to Hurd on her behalf. This prevented Hurd from discussing with Respondent the extent of her illness and when she expected to return to work. On November 25, 1987 Respondent had an appointment with Dr. Grate, who signed another Health Status Certificate for the period November 30 to December 11, 1987 indicating she remained under his care and was still unable to return to work. However, despite the fact she did report to work on December 2, 1987 and had been given specific instructions about how to apply for sick leave, she never presented Dr. Grate's Health Status Certificate dated November 25, 1987 to Hurd, or anyone else associated with Petitioner, until the hearing in this case. Therefore, Respondent did not present proper medical certification of illness for December 3, 4 and 7, 1987, and instead simply failed to report to work, or to in any way attempt to personally contact her supervisor. A letter dated December 7, 1987 notifying Respondent of her abandonment of position and of her right to a hearing was sent to Respondent from Petitioner's Executive Director by certified mail, return receipt requested. Respondent's husband signed for this letter on December 9, 1987, and Respondent acknowledges receipt.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter Final Order concluding that Respondent has abandoned her position with Petitioner in the career service due to her failure to report to work, or request leave, for December 3, 4 and 7, 1987. DONE AND ENTERED this 15th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1988. APPENDIX (DOAH Case No. 88-0161) Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Findings of Fact 4, 7. Adopted in Findings of Fact 5, 6, 7. Adopted in Findings of Fact 7, 8. Adopted in Findings of Fact 5, 6. Adopted in Findings of Fact 7, 8, 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact cannot be made since her post-hearing submission shows no indication that a copy was provided to counsel for Petitioner, despite specific instruction at hearing, and the narrative contained in her letter consists of serial unnumbered paragraphs which primarily present argument on the evidence rather than true proposed findings of fact. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William S. Bilenky, Esquire Public Service Commission 212 Fletcher Building Tallahassee, Florida 32399-0850 Harold McLean, Esquire Public Service Commission Office of General Counsel 101 East Gaines Street Tallahassee, Florida 32399 Norma D. Saabir P. O. Box 5802 Tallahassee, Florida 32314-5802 =================================================================
Findings Of Fact Petitioners', Joseph and Shelly Grainger, are husband and wife. They have one five year old son, Christopher Grainger. Joseph Grainger is the primary wage-earner for the family. At present, Joseph Grainger is unemployed due to a back problem. His previous employment was with a parcel shipping company. Due to his unemployment, Mr.Grainger is receiving approximately $653.00 a month in unemployment benefits. He will receive unemployment benefits until December, 1990, when his unemployment benefits terminate. As a recipient of unemployment benefits, Mr. Grainger must actively seek employment and is considered to be employable by the State. Proposed Rule 10C-1.11 Florida Administrative Code, implements federal and State law requiring the Department to furnish Aid to Families with Dependent children to indigent families whose principal wage-earner is unemployed (AFDC- UP). The law and the proposed Rule require the principal wage-earner to participate in the Job opportunities and Basic Skills program (JOBS). Florida has mandated that the spouse of the principal wage-earner also participate in the JOBS program, if funds are available. For AFDC-UP purposes, the Graingers constitute a three person assistance group. The assistance group determines the amount of benefits an applicant1 may receive if the applicant qualifies under the myriad eligibility requirements of the AFDC-UP program. The assistance group also sets the amount of income an assistance group may not exceed and still qualify for AFDC-UP. In this case, the Graingers' income limit is $294.00. Clearly, because of the amount of unemployment benefits Mr. Grainger is receiving, the Graingers do not now qualify for AFDC benefits and are not now receiving AFDC benefits which will be impacted by the proposed Rule. Since the Graingers are not now qualified for the AFDC-UP program and Mr. Grainger is employable, they have not established that they will suffer an injury from the proposed Rule's implementation of sufficient immediacy to entitle them to a hearing under s 120.54, Florida Statutes. See Agrico Chemical v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, (Fla. 1st DCA 1979); Florida Department of Offender Rehabilitation v. Jerrv, 353 So.2d 1230 (Fla. 1st DCA 1978); and Village Park Mobile Home Association v. State Department of Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987). Accordingly, the Graingers do not have standing to challenge the proposed rule. Based on the foregoing Findings of Fact and Conclusions Of Law and being otherwise fully advised in the premises, IT IS ORDERED that the Petitions filed in Case Nos. 90-5157RP and 5158R are dismissed and the Division's files closed. DONE and ORDERED this 2nd day of October, 1990, in Tallahassee, Florida. DIANA CLEAVINGER 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 2nd day of October, 1990. COPIES FURNISHED: Cindy Huddleston Florida Legal Services, Inc. 2121 Delta Way Tallahassee, Florida 32303 Scott LaRue Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Liz Cloud, Chief Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue The issue for determination is whether the Western and Southern Financial Group (Respondent), violated the Florida Civil Rights Act of 1992 (FCRA) in terminating employment of Stephen Howe (Petitioner) without reasonable accommodation. § 760.10, Fla. Stat.
Findings Of Fact Respondent is the Western and Southern Life Insurance Company, a subsidiary of Cincinnati-based Western & Southern Financial Group Inc. Respondent is a home service company that requires sales representatives to call on policy holders on a regular basis for sales and service. The district sales office in Pensacola, Florida, is one of 181 sales offices headed by a district sales manager. Jim Swaim served as the district sales manager for Respondent’s Pensacola Office from August 5, 2002 until November 3, 2003. Petitioner Stephen Howe became a Western and Southern sales representative on January 25, 1993, compensated pursuant to a Sales Representative Agreement of that same date, inclusive of the incorporated Sales Representative Schedule of Commissions, setting forth his compensation schedule and job duties. He intermittently served as a sales manager, but voluntarily became a sales representative pursuant to a Sales Representative Agreement dated June 28, 1999. He remained a sales representative until his termination on February 3, 2003. Petitioner was admitted to the hospital and therefore absent from work beginning August 28, 2002, due to an unrelenting headache and elevated blood pressure. The conditions cited by Petitioner's physician were sleep apnea and pheochromocytoma (pheo), which is a tumor on the adrenal gland that causes excess adrenaline production. Treatment for pheo usually takes four to five weeks, and is conducted on an outpatient basis. Petitioner’s disability was documented in September 2002, by Dr. Shawbilz, a neurologist, who reported at that time to Respondent personnel and described Petitioner’s dizziness, syncope and headaches. It was noted that Petitioner could not drive at that time due to obstructive sleep apnea, syncope and headache. Petitioner's family doctor, Dr. Mayeaux, prepared a report to Respondent on October, 2002, defining Petitioner's condition as serious and “requiring a period of incapacity from work and subsequent treatment”. Petitioner’s condition included high blood pressure, syncope, tremor, diaphoresis and palpitations. On October 2 and 8, 2002, Dr. Mayeaux sent a letter to Lori Mitchell, a registered nurse and the head of the Benefits Department of Respondent, outlining Petitioner's severe uncontrolled hypertension and a rare debilitating adrenal tumor. The doctor did not feel Petitioner should be working at that time. Later, in further correspondence dated October 28, 2002, Dr. Mayeaux opined Petitioner should not operate a motor vehicle at that time. On November 18, 2002, Dr. Mayeaux forwarded another letter to Respondent's benefit department outlining additional concerns about Petitioner’s syncope, chest pain, palpitations, diaphoresis, and disability to perform meaningful work or drive. On December 19, 2002, Dr. Mayeaux forwarded another letter to Respondent noting the now determined severe sleep apnea of Petitioner as a basis for daytime somnolence and drop attack/syncope. He again opined that Petitioner needed surgical relief from ear, nose and throat (ENT) issues to address sleep apnea prior to return to work. Respondent initially denied insurance for the surgery to address these issues while also denying Petitioner’s disability insurance claim. On December 30, 2002, Dr. Mayeaux again wrote to Lori Mitchell and noted Petitioner’s additional adrenal gland tumor. He opined, "[Petitioner] may not work until these problems have been satisfactorily resolved." On January 23, 2003, Mayeaux again wrote to Respondent’s Benefits Department continuing his disability opinions and noting, "aggressive surgical evaluation and intervention is underway at this time." Petitioner’s blood pressure continued to be labile and uncontrollable, but Mayeaux hoped to control this with surgery for Petitioner’s tumor. Sleep apnea, another of Petitioner’s disabilities, exists when a sleeping person experiences episodes where the individual is without breath. Petitioner did not respond well to the non-surgical treatment for this disorder, in which a machine is used to force air into the sleeping person’s breathing passages. The machine is called a “C-PAP”. Such treatment was prescribed for Petitioner without the best of success. Mayeaux hoped future surgery for the sleep apnea would help Petitioner’s severe case of this disorder by enlarging Petitioner’s breathing airway. The sleep apnea symptoms would have prevented him from driving in the course of his work. Petitioner’s wife observed Petitioner’s condition worsening beginning around August 2, 2002, when Petitioner would come home once or twice a day while working to take a nap. The tumor on Petitioner’s adrenal glands substantially limited major life-sustaining activities. As established by deposition testimony of Dr. Mayeaux, hormones secreted by Petitioner’s adrenal glands were affected by the tumor on his adrenal glands. There was evidence in Petitioner’s blood of over-production of adrenaline, with a by-product being excessive production of epinephrine. That he considered this to be a substantially limiting factor is one reason Mayeaux opined that Petitioner should not be working in his then-existing condition. Deposition testimony of Lori Mitchell establishes that she wrote a letter to Petitioner on September 9, 2002, requesting disability information for short-term disability. Subsequently, she sent a letter to Petitioner approving disability beginning September 13, 2002 Per Petitioner’s medical release provided to her, she had the ability to consult with Dr. Mayeaux. Mitchell was aware of all information received from Dr. Mayeaux. Mitchell was aware that Respondent's Family Medical Leave Act (FMLA) Department sent Petitioner a letter telling him that his absence of August 28, 2002, through October 8, 2002, was recorded as a "serious health condition." She also knew short-term disability was authorized for Petitioner through her department for the period ending October 8, 2002, following a review of his medical records. Short Term Disability is defined under Respondent's plan for associates "who are regularly unable to per form normal duties of their regular occupation due to sickness or injury." Mitchell was also aware of the "pheo" tumor, which can develop on an individual’s adrenal glands. She understood Dr. Mayeaux’s letter to her describing the tumor in Petitioner’s case as "debilitating" to mean "impairing him." She understood Dr. Mayeaux's letter of October 10, 2002, to her to mean Petitioner was prevented "from performing his daily activities" by his symptoms. Mitchell’s supervisor, Noreen Hayes, explained that the approval of the extension of short-term disability benefits through November 30, 2002, was based on "all doctor's notes associated with [Petitioner’s] condition." Mitchell was familiar with Dr Mayeaux's December 5, 2002 letter concerning the sleep apnea and breathing issues of Petitioner, as well as other letters from Mayeaux on December 30, 2002, and January 23, 2003. She identified a Respondent Medical Leave of Absence form executed on December 12, 2002, where his doctor opined Petitioner had "a serious health condition that makes you unable to perform the essential functions of your job" and that the condition would continue until rectified. Dr. Terrell Clark is Respondent's Vice President and Medical Director. He recalled information received regarding high blood pressure and sleep apnea to "evaluate what time might be appropriate for [Petitioner’s] disability." He was also aware of a concern for brain problems due to Petitioner’s head CT scan. He was aware of the "pheo" tumor diagnosis on Petitioner’s adrenal gland and resultant production of abnormal hormones. He also agreed that the condition was very treatable. He also was acquainted with the correspondence of Dr. Mayeaux on Petitioner’s behalf. Dr. Mayeaux opined it would be possible for Petitioner to have performed an office-type job that did not require driving. His ability to provide service to his clients was otherwise unimpaired. During August, 2002 to February, 2003, Petitioner was in constant contact with Respondent personnel and his clients by phone. In the words of Karen Howe, "he was always on the phone" until the end of his employment. The phone was part of his normal job activity. During this same time, Petitioner filled out all his clients’ paperwork and paperwork for their families in regard to financial matters. He was also able to give advice to clients as he always had. There are clerical positions in the field offices of Respondent. In Cincinnati, Ohio, Respondent has hundreds of clerical positions that do not require driving as an essential function of the job. The company has 1,900 clerical sedentary positions. Most of these do not require driving. Dr Mayeaux sent a letter to Respondent dated January 30, 2003, stating that Petitioner could return to work so long as he did not drive. He also told Petitioner earlier that he could work if someone else drove. No direct credible evidence was presented that having Petitioner's wife drive him would not result in a reasonable accommodation for Petitioner. The company does not insure the vehicle Petitioner drove as part of his work. There is also no direct credible evidence that Respondent required Petitioner to be covered with insurance over and above what he and his wife ordinarily carried on their vehicle. No evidence was presented assailing the driving abilities of Petitioner’s wife. Petitioner's job did not require that he drive at any certain time. His wife often rode with her husband while he was meeting with his clients or Respondent personnel during the years of his employment. She routinely went by the local office, saw his manager, and no one ever objected to her riding with Petitioner. Petitioner’s wife asked his district manager, on her husband’s behalf, three or four times if she could drive her husband after he was told by his doctor not to drive. Her requests were denied. She was willing to do this without pay, with the vehicle he customarily used, that they both owned, and kept well insured. She drove him to his last day at work where, when informed that he was fired, he cried. Thomas Johnson is the company vice president responsible for administering Respondent’s leave-of-absence policy. Respondent personnel monitor when an employee "can return to work.” Johnson initially received a form noting Petitioner began his leave of absence as a result of illness on August 28, 2002. Johnson receives information from a Respondent committee that meets to discuss whether to allow accommodations for injured employees. Pursuant to the committee’s action, Johnson notified Petitioner that Short Term Disability was approved through November 30, 2002. Johnson wrote a letter on January 23, 2003, to Petitioner to return to work on full-duty status on February 2, 2003, or be terminated. This letter was based on a meeting of his department’s medical and legal personnel. At the meeting, which resulted in Johnson’s letter to Petitioner, all of those in attendance decided not to accommodate Petitioner. At that meeting they never discussed restructuring or modifying Petitioner’s position or reassigning him, even though the only restriction Johnson was aware of was the restriction on Petitioner’s driving. At that meeting, they did discuss time for Petitioner to provide medical information in regard to Petitioner’s fitness to return to work. As a result of the denial by the committee of further Short Term Disability Leave, Petitioner's right to a further leave of absence ended, absent a "fitness for duty" report. Johnson informed Petitioner of the Respondent committee’s action by another letter dated January 27, 2003, sent from Cincinnati, Ohio, to Petitioner in Pensacola, Florida, through regular post office mail to a numbered post office box. Per that letter, Johnson required that Petitioner have the requisite fitness for duty report by February 3, 2003, or be terminated. Petitioner was not provided the appropriate form for the report as part of this communication and he was not given any time to obtain the information, yet he was terminated for not having it. Johnson instructed Petitioner's District Manager on February 3, 2003, that Petitioner could not work that day because of "unauthorized leave of absence". Johnson sent a letter on February 3, 2003, terminating Petitioner. The clause Johnson used to terminate Petitioner was "absence for two days without notice." Johnson received a letter from Dr. Mayeaux dated January 30, 2003, after he had sent his February 3, 2003 letter to Petitioner. Mayeaux’s letter stated that Petitioner could work as long as he did not drive. Petitioner showed up for work on February 3, 2003, with only the letter of January 23, 2003. The employment agreement provided by Respondent to Petitioner does not spell out what medical evidence is to be provided to prevent application of the "unauthorized leave of absence" clause used to terminate Petitioner. By company policy, there is no right for an unpaid leave of absence because of a disability claim. Johnson was fully informed and received regular information from Lori Mitchell regarding Petitioner’s condition as reported by his doctors to her. When an employee such as Petitioner is absent from the office, this fact is reported to Respondent’s home offices without notice to the affected employee. Dean Vonderheide is the director of Respondent’s benefit department. His testimony establishes that the Summary Plan Description given to Respondent employees for Short Term Disability provides no information regarding where an employee can get the forms to file claims. A terminated employee is not entitled to long-term disability benefits. Neither Lori Mitchell, R.N.; vice president Dr. Clark; or vice president Johnson made any effort to contact Petitioner or his doctor to supplement or add to what was included by Dr. Mayeaux in his correspondence dated January 30, 2003. Petitioner was wrongfully terminated by Respondent on the basis of Petitioner’s disability without fair consideration by Respondent of Petitioner’s request for accommodation, i.e. , that his wife be permitted to chauffer Petitioner in the course of his continued employment or that alternative employment for Petitioner within Respondent’s company be considered by Respondent. Such provision had been made for a former salesperson of Respondent. Petitioner lost wages from his termination of employment with Respondent up and through his death on July 6, 2003. The income tax records in evidence show that Respondent paid Petitioner a total of $42,057.09 in the taxable year 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 16th day of November, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2005. COPIES FURNISHED: Daniel Stewart, Esquire 4519 Highway 90 Pace, Florida 32571 Alice M. Fitzgerald, Esquire Western & Southern Financial Group 400 Broadway Cincinnati, Ohio 45202-3341 Linda G. Bond, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Louis C. Germain, has been employed with the Department of Health and Rehabilitative Services, Foster Care Unit-452 since late 1984 or early 1985. On the morning of February 3, 1986, the Petitioner was involved in an automobile accident during the course of his employment while enroute to pick up a client who had a court appointment. As a result of the accident the Petitioner sustained several injuries, including a nose injury, back pains, headaches and blurred vision. The Petitioner was taken to his physician's office. At approximately 4:30 p.m. on February 3, 1986, the Petitioner called his immediate supervisor, Ms. Shelia Weiner, and advised her of the accident and of his injuries. On Friday, February 7, 1986, the Petitioner went to his office to pick up his pay check. The Petitioner spoke with Ms. Weiner and informed her that he did not know when his physician would allow him to return to work. On Monday, February 17, 1986, the Petitioner returned to the office once more to pick up a pay check. Ms. Weiner told the Petitioner that he had to report to work on Thursday, February 20, 1986. The Petitioner told Ms. Weiner that he was still suffering from injuries sustained in the February 3, 1986 accident and that he did not know when he would be able to return to work. On February 20, 1986, Ms. Weiner wrote the Petitioner a letter stating that his absence from work since February 17, 1986 had not been authorized. The letter stated in part that: "You are directed to report to work immediately and provide an explanation for your absences." The Petitioner received Ms. Weiner's letter on Saturday, February 22, 1986. On Tuesday, February 25, 1986, the Petitioner had an appointment with his physician and obtained a medical statement from her. The Petitioner's physician indicated in the medical statement that Petitioner had been under her care since the automobile accident of February 3, 1986, that Petitioner sustained multiple injuries in the accident and that Petitioner was now able to return to work. The Petitioner returned to work on February 25, 1986 and was advised that he needed to speak with Mr. Carlos Baptiste, supervisor of the personnel department. The Petitioner presented the letter from his doctor to Mr. Baptiste, but Baptiste was not satisfied with the doctor's statement and felt that it was "insufficient." Baptiste asked the Petitioner if he had a towing receipt or an accident report to confirm the accident of February 3, 1986. The Petitioner replied that he did not. The Petitioner was not allowed to return to work. At the final hearing, Mr. Baptiste stated that: "If Mr. Germain had produced an accident report, he would still be working with HRS." The Petitioner's leave and attendance record maintained by DHRS reflected that the Petitioner was given sick leave from February 3 to February 6, 1986. From February 7 to February 20, 1986 the Petitioner was placed on leave without pay. On March 3, 1986, Ms. Sylvia Williams notified the Petitioner by certified mail that due to his absence from work since "February 17, 1986", he was deemed to have abandoned his position and to have resigned from the Career Service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Administration enter a final order reinstating Petitioner to his position with the Department of Health and Rehabilitative Services, Foster Care Unit-452 in Miami, Florida. DONE and ORDERED this 4th day of February, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3319 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 substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 11. Matters not contained therein rejected as argument. Addressed in Conclusions of Law section. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as argument. Rejected as argument. Rejected as argument. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a recitation of testimony and/or argument. Adopted in substance in Finding of Fact 6. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as mis- leading. Rejected as subordinate. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: Louis C. Germain 308 Northeast 117 Street Miami, Florida 33161 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue - Suite 790 Miami, Florida 33128 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The issue is whether Respondent is guilty of insubordination for the use of excess leave and sleeping in his vehicle during working hours.
Findings Of Fact On or about April 21, 2004, Petitioner hired Respondent as a school custodian. Starting on December 11, 2007, Petitioner transferred Respondent to Toledo Blade Elementary School. One year later, Petitioner transferred Respondent to the Transportation Department, which is the building housing the transportation offices. As a custodian, Respondent is a "classified" employee. He is covered by the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and Petitioner (the contract). Twice on the morning of April 25, 2008, during working hours and not while on a break, Respondent walked from his worksite to his vehicle, climbed into the vehicle, and nodded off to sleep. The first nap lasted for about one hour, and the second nap lasted about one and one-quarter hours. The second nap ended when Respondent's boss and the boss's boss walked out to the vehicle where they found Respondent, who had put the driver's seat down, laid out in the front driver's seat, with the radio on, sound asleep. They woke him and ordered him back to work. Respondent's defenses are: 1) he was not asleep; he was unconscious; and 2) he was suffering from extreme drowsiness due to medications that he was taking following his recovery from a three-month coma into which he had fallen two years earlier. Both of Respondent's defenses are makeshift. According to Webster's online dictionary, "sleep" is the "natural periodic suspension of consciousness during which the powers of the body are restored." (http://www.merriam- webster.com/dictionary/sleep, as found on June 17, 2009) If he had suddenly lost consciousness at the worksite, no one would claim he was sleeping on the job. Instead, without reporting any difficulties to anyone, he walked out to his vehicle, made himself comfortable, and fell asleep. The problem was that his natural period of suspended consciousness coincided with time during which Petitioner was paying him. The requisite restorative effect is inferred. Nor is there any credence to the claim of a medical condition or effect of a medication that would leave Respondent unable to resist falling asleep while on duty. Although ample opportunity existed, Respondent failed, on the day in question, to bring to the attention of his supervisor any medical reason for sleeping on the job, which was exactly what he was doing. Article XXI of the contract authorizes discipline for "just cause." Sleeping while on duty, for over two hours prior to lunch, constitutes insubordination and just cause for discipline. The leave issue is more complicated. Petitioner is on a fiscal year starting July 1. For the entire year, classified, 12-month, hourly employees, such as Respondent, accrue six personal days on July 1. For sick days, these employees accrue one day at the end of July and three advance days. They then accrue a day at the end of each following month through March. Unused sick days rollover to the next year, but unused personal days do not. Personal days count against the sick days. In other words, if an employee has five sick days and six personal days and uses a personal day, he will then have four sick days and five personal days. Employees also earn vacation days. As explained by Petitioner's payroll supervisor, the payroll system facilitated recharacterizations between sick and personal days. However, the system did not incorporate vacation days in the same fashion. Thus, if an employee took off one day, without claiming sick leave, and lacked one day of personal time, the system would dock his pay, even though he might still have had sufficient vacation time to absorb the time that he had taken off. For the 2007-08 school year, Respondent used "personal leave charged to sick" as follows: September 12--8.0 hours; September 24--8.0 hours; December 20--8.0 hours; December 21-- 8.0 hours; January 30--0.5 hours; February 15--8.0 hours; and February 27--7.5 hours. On February 27, Respondent missed the entire day of work. Consistent with acceptable practices, on the next day, he submitted a form entitled, "Certificate of Absence." In it, Respondent requested approval for 8.0 hours of "personal leave charged to sick," rather than one of the other categories, such as sick leave or vacation leave. His supervisor signed the form. When the payroll supervisor checked his balances, she saw that he only had 7.5 hours of personal leave charged to sick, so, on May 2, 2008, Respondent had to sign a form entitled, "Request for Personal/Sick/Vacation Leave in Excess of Earned Leave." This form requested approval for the use of 0.5 hours of personal leave in excess of earned leave. The request was disapproved by the Director of Facilities Services with a signature bearing a date of March 13, 2008. The payroll department's practice was not to deduct personal leave charged as sick against vacation leave, if an employee consumed all of his personal leave charged as sick. On March 14, Respondent again requested 2.5 hours of personal leave charged to sick. His supervisor noted on the form that he "cautioned Tim to make sure he has the time available--Tim told me that he does. 3-14-08." By this time, it is unlikely that Respondent had received a new statement of leave balance reflecting the 0.5 hours that he had been short two weeks earlier. On May 2, 2008, Respondent signed another request for permission to use personal leave in excess of earned leave, and the Director of Facilities denied the request with a signature bearing a date of March 27, 2008. The same process took place again on April 11 for 8.0 hours on April 7. Petitioner notes that this request also violated policy regarding custodial leave on the day immediately after spring break, for which leave requests must be submitted well in advance of the leave sought. Article XVII of the contract requires a special procedure for leave on days immediately preceding and following a school holiday, but the emphasis in testimony was on the importance of adequate custodial staff on such days. However, the purpose of this policy is to address the needs of schools with respect to returning students. Because Respondent was not assigned to a school, nor had he been assigned to one temporarily for returning students, he was not undermining this policy by conforming to general policy, which allowed after-the-fact requests. In any event, as the payroll supervisor testified, it is possible that Respondent still had vacation time each time that Petitioner docked him for requesting personal leave charged as sick when he had already exhausted his personal leave. On these facts, Petitioner does not have just cause to discipline Respondent on the ground of insubordination or any other ground. There is no doubt that Respondent understood the interplay between personal leave charged to sick and sick leave, but there is considerable doubt as to, on the first two occasions on which he overdrew on his balance of personal leave charged to sick that he knew that he was doing so. Additionally, there is a reasonable possibility that he had available vacation leave, against which all of this time could have been charged; absent proof from Petitioner precluding this possibility, the entire dispute is reduced to the level of finding the proper account to debit these relatively few hours of missed work. This does not rise to insubordination, nor does it constitute just cause for discipline. Article XXI of the contract requires progressive discipline, which constitutes a verbal reprimand, written reprimand, suspension with or without pay, and dismissal. The next step in progressive discipline for Respondent is suspension with or without pay, not dismissal.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Sarasota County, Florida, enter a final order dismissing the charge of excessive use of leave and finding Respondent guilty of the charge of sleeping while on duty and suspending him, without pay, for five working days. DONE AND ENTERED this 18th day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2009. COPIES FURNISHED: Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Lisa J. Kleinberg, Esquire Law Offices of Kleinberg, Ingram & Murphy, P.L. 2189 Ringling Boulevard Sarasota, Florida 34237 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The Petitioner, Johnny L. Richardson, was a test technician in the receiving/inspection department of the Respondent, Group Technologies Corporation, when he became ill, had to be hospitalized, and went on a medical leave of absence on September 6, 1990. Before he was able to return to work, in addition to the illness that resulted in his initial hospitalization, the Petitioner suffered two pulmonary embolisms that required hospitization and had a lobectomy (removal of part of one lung). At the time of his ultimate discharge from the hospital, the Petitioner was diagnosed with a number of medical conditions. He had hypovolemic shock, viral myocarditis, with cardiomyopathy and right ventricular failure, pulmonary abscesses, congestive heart failure, leukocytosis, chest wall pain and pleurisy. In addition, he already had insulin dependent diabetes mellitus. Because of the length of the Petitioner's medical leave of absence, and the Respondent's needs, the Petitioner's former position in the receiving/inspection department was filled during his absence, in accordance with standard company policy. The Respondent's treating physicans released him to return to work on or about July 2, 1991. At the time, the Respondent was aware of the Petitioner's preexisting insulin dependent diabetes mellitus, and was generally aware that the Petitioner's health problems had required hospitalization and a medical leave of absence. But the Respondent did not have detailed medical information concerning the Petitioner's other medical diagnoses. On or about July 2, 1991, the Petitioner contacted the Respondent's staff nurse to advise her that he had been released to return to work. She made arrangements for him to be seen on July 8, 1991, by the Respondent's consulting physician, in accordance with standard procedures for employees on leave of absence for over 90 days. The consulting physician was a specialist in occupational medicine and had a working knowledge of the Respondent's work place and the jobs performed by its employees. He was to use this expertise and knowledge to verify that the employee could do the job he was to perform and to determine whether any restrictions or limitations were appropriate in view of the employee's medical condition. The staff nurse also advised the Petitioner to contact the Respondent's Human Resources Representative (HR Rep) to tell her that his treating physicians had cleared him to return to work. The next day, the Petitioner telephoned the HR Rep, but she was out on vacation until July 8, 1991. On or about July 8, 1991, the Petitioner was seen by the company's consulting physician. A routine medical examination was conducted, including taking a history. The Petitioner told the doctor that he had coronary heart disease, diabetes, lung abcess and hypertension and was taking various medications, including Coumadin and Lanoxin for his heart disease, Lasix and Prednisone for his chronic lung disease and breathing disorders, and insulin for his diabetes. He also reported the lobectomy. Based on the medical examination, the doctor prepared a report stating that he needed medical records from the Petitioner's treating physicians and that the Petitioner would need a job check before reemployment to ascertain the suitability of the particular job in which he was placed. In addition, the report stated that the Petitioner would have to avoid physical stress and avoid lifting heavy weight. The report also suggested that the Petitioner's exposure to chemicals may have to be limited. The doctor also filled out and gave the Petitioner a form stating that the "disposition" of the examination was that the Petitioner was to have "no duty." The Petitioner gave this form to the staff nurse, but the evidence is not clear when. On the day of the examination, before the report was sent to the Respondent's medical office, or even typed, the doctor telephoned a report to the Respondent's staff nurse. The nurse in turn telephoned the HR Rep and told her that, per the doctor's instructions, the Petitioner was not to work with chemicals and was to limit lifting to 25 pounds. The HR Rep also was advised that it would be best for the Petitioner not to work night shifts due to the medications he was taking. As can be seen, the information on the "disposition" form was not consistent with the information in the written report or with the information in the telephonic report the staff nurse gave the HR Rep that day. The Petitioner also saw the HR Rep on July 8, 1991. (She had just returned from vacation.) It is not clear from the evidence whether, at the time of her meeting with the Petitioner, the HR Rep already had received the telephonic report from the company's staff nurse. During the Petitioner's meeting with the HR Rep, the HR Rep told the Petitioner that she would have to determine whether the company had any test technician positions, or other positions with status and pay commensurate with the Petitioner's former position, that were open. Under company policies, employees returning to work after an extended leave of absence, during which their former positions were filled, were entitled to be considered for other positions with status and pay commensurate with the employee's former position, if any were available. The HR Rep reviewed her open requisition lists and determined that there were no suitable positions open at the time. (On or about June 28, 1991, the Respondent had extended job offers, with start dates in early July, to eight applicants for test technician positions that the company had been in the process of filling in June.) She telephoned this information to the Petitioner on either July 8 or 9, 1991, and told him that she would have to lay him off with recall rights. Actually, company policy provides for laying employees off with recall rights as a result of reductions in work force. It does not specifically apply to the situation where an employee returns to work after an extended leave of absence, during which the employee's former position was filled, and there are no positions with status and pay commensurate with the employee's former position available. But, since there was no other employment status designated by personnel policies for such an employee, the company felt that it was appropriate to lay off such an employee with recall rights. Under company policy, an employee who is laid off with recall rights has a right to be considered for recall before new employees with similar skills are hired. This is not a guarantee of reemployment but only right to be considered for employment before "external candidates" are considered. Actually, even under this interpretation of company policies, the Petitioner should have been laid off with recall rights only if he was ready to return to duty with restrictions (as indicated in the consulting physician's written report, and in the telephonic report from the staff nurse to the HR Rep). If he was unable to return to duty at that time (as indicated by the "disposition" form), he should have been continued on medical leave of absence. At the conclusion of their meeting on July 8, 1991, the HR Rep told the Petitioner that he would be contacted if there were any openings for him, or words to that effect. On or about July 12, 1991, the HR Rep became aware of an employee requisition request with a position with status and pay commensurate with the Petitioner's former position. She contacted the hiring supervisor and asked if he was interested in hiring the Petitioner for the position. The hiring supervisor quickly replied that he was not interested in hiring the Petitioner. Asked why not, he answered that he knew the Petitioner's attendance and performance history from having worked with the Petitioner in past years, and from knowing the Petitioner's reputation, he was not interested in hiring him. Further specifics about the hiring supervisor's reasons for not wanting to hire the Petitioner were neither given nor asked for until approximately January, 1992, which is after the filing of the Charge of Discrimination in this case. If asked, the hiring supervisor would have said that, during a period of time in which they worked together in the early 1980s, the Petitioner was frequently absent from work, frequently wandered away from his work station, and frequently could not be found when needed. Later, in the late 1980s and early 1990, the hiring supervisor had several occasions to inquire as to the reason for delays and was told that there was a bottleneck in the receiving/inspection department because the Petitioner was absent from work again. The Petitioner's absences made it difficult for those depending on the Petitioner's work to meet production deadlines. To attempt to deal with the Petitioner's absences, the company tried to get the employee in the position in the shifts before and after the Petitioner's shift to work overtime. After talking to the hiring supervisor, the HR Rep reported to her supervisor, who helped her research the Petitioner's personnel file to determine if there was "reasonable justification" for the hiring supervisor's rejection of the Petitioner on the basis given to the HR Rep. They learned from the Petitioner's personnel records that, on or about May 17, 1990, the Petitioner's supervisor counseled him that his attendance had to improve. In June, 1990, the Petitioner's performance appraisal reflected the attendance problems. It indicated some improvement but stated that further improvement was necessary for the Petitioner's attendance record to be within company norms. The appraisal also indicated that the Petitioner's performance no longer was improving, as the prior year's appraisal indicated it had been. It is not clear from the evidence whether the HR Rep and her supervisor also reviewed the Petitioner's attendance records. If they had, they would have also seen that the Petitioner was absent from work a total of 220 hours in 1989, not including 64 hours during plant shutdowns. From January to May, 1990, the Petitioner was absent a total of 46 hours, in addition to 124 hours of vacation leave without prior notice. After Sumner declined to hire the Petitioner, the HR Rep did not ask other hiring supervisors to consider the Petitioner for openings before considering external candidates. She did not tell the Petitioner that he had been rejected for the opening on or about July 12, 1991, or that his recall rights effectively had been terminated (in that she no longer was asking hiring supervisors to consider the Petitioner for openings before considering external candidates.) Nonetheless, the Petitioner was not surprised not to be recalled because he knew that employees who are laid off with recall rights are rarely recalled. The Petitioner acknowledges that he cannot prove, by direct evidence, that the Respondent discriminated against the Petitioner on the basis of a handicap or perceived handicap. Instead, the Petitioner argues that it should be inferred from the evidence that the Respondent, first, laid off the Petitioner instead of maintaining him on medical leave of absence and, second, did not recall him, in furtherance of plan to terminate his employment because of his handicap or perceived handicap. The inference the Petitioner seeks to have drawn was not proven by a preponderance of the evidence. First, as for the decision to lay the Petitioner off, there is no persuasive evidence that it would have been significantly more difficult ultimately to terminate the Petitioner's employment if the Petitioner had been maintained for the time being on medical leave of absence. Second, as to the decision not to recall the Petitioner, it was not proven that the Respondent did not recall the Petitioner for any reason other than the one articulated by the Respondent--namely, hiring supervisor Sumner rejected him for the reasons he gave. The Respondent is an equal opportunity employer and takes affirmative, proactive steps to recruit, hire and retain minorities and handicapped persons. It has completed required affirmative action plans, does adverse impact analyses on a semiannual basis, and advertises and recruits from agencies that deal with disabled persons. While the Respondent did not hire the Petitioner back after his extended medical leave of absence, it has hired others back after medical leaves of absence of 90 days or more. One employee was hired back after heart catheterization and coronary bypass surgery. Another was hired back after rupturing a disc and having back surgery. Both were returned to work with restrictions, after seeing the same consulting physician the Petitioner saw. Their medical conditions were at least as susceptible of being perceived as being handicaps as the Petitioner's. In both of those cases, the employee was able to be returned to the positions from which they had to take leave; they did not have to be laid off. Conversely, other employees who had not been on medical leave of absence but were laid off with recall rights in connection with a reduction in work force also have not been recalled. Three such employees who were laid off during the August, 1990, reduction in force were not even recommended to hiring supervisors for suitable positions that came open during the period of time in which their recall rights were effective, even though they were technically more qualified for the positions, based on their higher job grade levels, than the people ultimately hired for the jobs. The reason they were not recalled was that they had been laid off because their job performance ranked them at the bottom of the "totem pole" of employees subject to possible layoff in the reduction in force. The Petitioner survived the August, 1990, reduction in force because, based on need, no reduction was made in the receiving/inspection department. If there had been, the Petitioner would have been the first to be laid off due his rank at the bottom of the "totem pole" for the test technician positions in his department. The failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But none of those possibilities would constitute, nor do they prove, discrimination on the basis of handicap or perceived handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 15th day of September, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1224 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated to the extent not subordinate or unnecessary. Penultimate sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 10.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. As to second sentence, not necessarily all such employees see Myint on returning. It depends on the staff nurse's judgment as to the necessity. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Rejected as not proven that the policy itself "entitled" the Petitioner; rather, it was the Respondent's favorable interpretation of the policy. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20. As to the last sentence, Sumner gave some specifics at the time, but not many, as reflected in the Findings of Fact. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Accepted and incorporated to the extent not subordinate or unnecessary. (However, as to 22, at least the last time, everyone under Gonzalez got a "merit" increase, and the Petitioner got the smallest raise because his job performance ranked him the lowest on the "totem pole.") 24. First sentence, accepted and incorporated. The rest is rejected as subordinate to facts contrary to those found. 25.-27. In part accepted, but in part rejected. Rejected as not proven that the Petitioner was not considered for the July 12, 1991, opening. Sumner did consider the Petitioner and rejected him. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." But, if not "reasonable," their actions did not prove discrimination on the basis of handicap or perceived handicap. Rejected as not proven that Wilson "considered Richardson a potential problem employee because of his long illness." Rejected as not proven that the Respondent ever considered the Petitioner "unqualified." Rejected as not proven that the Respondent discriminated against the Petitioner on the basis of handicap or perceived handicap. Rejected in part as argument. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary. 28.-32. Accepted but generally subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. 8. Rejected as contrary to the greater weight of the evidence that his "performance" declined. Rather, the appraisal would indicate that the rate of improvement in his performance had declined. 9.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Generally, accepted and incorporated to the extent not subordinate or unnecessary. (The information imparted by the doctor was somewhat ambiguous.) 24.-31. Generally, accepted and incorporated to the extent not subordinate or unnecessary. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." And the Respondent's failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But, as found, those actions did not prove discrimination on the basis of handicap or perceived handicap. 32.-34. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ronald W. Fraley, Esquire Fraley & Fraley, P.A. 501 East Kennedy Boulevard, Suite 1225 Tampa, Florida 33602 Grant D. Peterson, Esquire Haynsworth, Baldwin, Johnson & Harper 1408 North Westshore Boulevard, Suite 1000 Tampa, Florida 33607 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
Findings Of Fact Prior to February 25, 1986, the Petitioner, Tommie Miller, was employed by the Respondent, the Department of Health and Rehabilitative Services (HRS) at the Brevard Regional Juvenile Detention Center as a detention child care worker I. During the time relevant to this case, June and July, 1987, Ms. Miller's supervisor was Michele McKinley, detention center superintendent. On February 25, 1986, Ms. Miller injured her lower back, injuring two nerves. The injury was job connected, and Ms. Miller was eligible for and received workers compensation benefits. Ms. Miller was receiving workers compensation benefits during the period relevant to this case, July 10 through 27, 1987. With the exception of a brief time during the period of June 22 through 24, 1987, Ms. Miller was absent from work from February 1986 through August 10, 1987, and thereafter, for that matter. On June 24, 1987, she reinjured her back at work. During the months she was out of work, Ms. Miller was treated in various rehabilitation programs. In June and July, 1987, she was receiving treatment from Woods Rehabilitation Services, Inc., and the rehabilitation nurse assigned to her case was Joan Patterson. R. Ex. 5. Ms. Miller lives 25 miles from the detention center, and testified that in June and July of 1987, her back hurt too much to allow her to drive to work at the detention center. Ms. Miller had exhausted her sick leave by July 22, 1987. It is inferred that she was on approved leave without pay by July 22, 1987. This inference is based on the fact that nearly a year and a half had elapsed from the date of the injury, and normal sick, annual, and compensatory leave would have been exhausted. This inference is also based upon the rules concerning the proper way to characterize the absence of an employee due to a job connected disability discussed in the conclusions of law. It is inferred that on July 22, 1987, the period of approved leave without pay was indefinite. This inference is based on the findings of fact which follow and the lack of evidence of a definite period of approved leave without pay. On June 22, 1987, Dr. Stanley Kaplan provided a written statement excusing Ms. Miller from work. On June 29, 1987, Ms. Miller was again seen by Dr. Kaplan for evaluation. Dr. Kaplan performed the normal therapy he was then performing for Ms. Miller, but did not tell her she could return to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on June 29, 1987. On July 17, 1987, Ms. Miller visited Dr. Stanley Kaplan for rehabilitative treatment. Dr. Kaplan did not tell Ms. Miller at that time that she could go back to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on July 17, 1987. On July 22, 1987, Ms. McKinley wrote a certified letter to the Petitioner, Tommie Miller. R. Ex. I. The letter in its entirety stated: I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87. She further reported that you stated you didn't understand that you could return to work. In addition, we have had no further contact from you since 6/24/87. I am now going to have to require you to report back to work on 7/27/87, by 9:00 a.m. If you do not report back to work on this date or provide the appropriate medical documentation as to your absence, we will have to assume that you have abandoned your position with HRS. Thus, the letter of July 22, 1987, explicitly gave Ms. Miller two options: report to work at 9:00 a.m. on July 27, 1987, or "provide the appropriate medical documentation as to your absence." From the contents of the letter, it is concluded that when the letter was written, Ms. McKinley thought that Dr. Kaplan had released Ms. Miller to return to work on July 10, 1987. It is also concluded from the contents of the letter and from R. Ex. 5, which Ms. McKinley testified she had in her possession and was aware of when she wrote the July 22, 1987, letter, that Ms. McKinley was aware on July 22, 1987, that Ms. Patterson had said that Ms. Miller had said that she (Ms. Miller) did not understand that Dr. Kaplan had said she could return to work. On July 22, 1987, Ms. Miller was examined by Richard P. Newman, M.D. On July 24, 1987, Ms. Miller received the letter of July 22, 1987. As soon as she received the letter, Ms. Miller called Ms. McKinley on the telephone. Ms. Miller told Ms. McKinley that her current medical problem was an inability to drive to work, but that she could work if she was able to travel to work. Ms. McKinley told Ms. Miller that she had not received a written report from a physician concerning Ms. Miller's condition since June 24, 1987. Ms. McKinley told Ms. Miller that she (Ms. McKinley) still needed medical documentation, and that she could not authorize leave based on her oral report without medical documentation. Ms. Miller then told Ms. McKinley that Ms. Patterson at the Woods Rehabilitation Services was supposed to send the doctor's report to Ms. McKinley. During the telephone call, Ms. McKinley did not ask her (Ms. Miller) to personally deliver the doctor's report, and did not tell Ms. Miller that reliance upon Ms. Patterson was inappropriate. Moreover, Ms. McKinley did not warn Ms. Miller that if Ms. Patterson fi1ed to deliver the report by July 27, 1987, that Ms. Miller would automatically forfeit her job. At the time of the phone call from Ms. Miller, Ms. McKinley was in possession of R. Ex. 5. The top of page two of that document advised Ms. McKinley that Ms. Miller was scheduled for an evaluation by Dr. Newman on July 22, 1987. In the fourth paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Ms. Miller would attend the appointment with Dr. Newman. In the seventh paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Nurse Patterson felt that Dr. Newman's evaluation was important to an assessment of the current status of Ms. Miller's medical condition. These findings are based upon what is in fact stated in R. Ex. 5 and known to Ms. McKinley as what Ms. Patterson had written. No finding is made as to whether what is stated in R. Ex. 5 is true. It is concluded that during the telephone conversation with Ms. Miller on July 24, 1987, Ms. McKinley knew that Ms. Miller was to have been evaluated by Dr. Newman on July 22, 1987. At the time of the phone call on June 24, 1987, Ms. McKinley did not ask Ms. Miller to tell her what Dr. Newman had determined concerning Ms. Miller's medical condition, and did not ask Ms. Miller about Dr. Newman's evaluation two days earlier. As a result, during the July 24, 1987, telephone conversation, inexplicably neither Ms. McKinley nor Ms. Miller mentioned anything about Dr. Newman's evaluation on July 22, 1987. R. Ex. 2A is the report of Dr. Newman with respect to the visit of July 22, 1987. The report indicates on its face that Woods Rehab Services and Ms. Tommie Miller are listed as recipients of the "cc." The report of Dr. Newman of July 22, 1987, R. Ex. 2A, states in part: At this time, my feeling would be that the drive to and from Titusville is causing her more harm than good. Since she works for the state, it would be in the best interest of all parties concerned to move her to a position in the Rockledge area because she will be able to commute a very short drive and would be quite capable of performing this type of sedentary work. On July 24, 1987, Ms. Miller called Dr. Newman to get another written report, and asked Dr. Newman to send that report to Ms. Patterson at Woods Rehabilitation Center. R. Ex. 2B is that report. The report of July 24, 1987, shows that Woods Rehabilitation Services, Inc., but not Ms. Miller, was the recipient of a "cc." The report of July 24, 1987, R. Ex. 2A states in part: It is not the act of driving itself, but it is the riding in the car that is bothering her back and I do not think that she should be having to travel by car 25 miles in either direction to work when she could be doing a similar job virtually around the corner from her house. It is concluded that the report of Dr. Newman, in written form, supported Ms. Miller's oral statement to Ms. McKinley that she was physically unable to drive to the detention center due to the distance. These findings of fact are based upon what in fact is printed on the face of the reports, and is not a finding that the statements contained in the reports are true. Ms. Patterson told Ms. Miller that she would send the report to Ms. McKinley. Ms. Patterson told Ms. Miller that she did communicate with HRS. No finding is made as to the truth of Ms. Patterson's statement, but only that Ms. Miller in fact heard Ms. Patterson make this statement to her. Ms. Miller thought Ms. Patterson would and did send the medical report of July 22, 1987, to Ms. McKinley. Ms. Patterson did not send Dr. Newman's medical report to Ms. McKinley. There was a prior pattern of dealing between the parties such that Ms. Patterson, with reasonable frequency, though not routinely, communicated to Ms. McKinley concerning the current medical status of Ms. Miller with respect to her ability to resume her job with HRS. This finding of fact is based upon the testimony of Ms. Miller, who stated that she relied upon Ms. Patterson to keep Ms. McKinley informed, and the testimony of Ms. Miller that on July 24, 1987, she told Ms. McKinley by telephone that Ms. Patterson would send the medical documentation. It is also based upon the testimony of Ms. McKinley, who testified that Ms. Patterson did, from time to time discuss with her Ms. Miller's medical condition and job alternatives. But most important, this finding is based on the letter of July 22, 1987, itself. The first sentence of that letter stated: "I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87." It is noted that R. Ex. 5, which Ms. McKinley testified was the only information she had on July 22, 1987, was an extensive report prepared by Nurse Patterson, and shows Michele McKinley in the "cc" list, from which it is inferred that Ms. Patterson routinely sent these medical evaluations to Ms. McKinley. In the year between August, 1986, and July, 1987, there is no evidence that Ms. Miller had failed to provide HRS with medical documentation concerning her injury as may have been required by HRS, or that HRS had not been satisfied with the reports received from Nurse Patterson and her predecessors. In particular, there is no evidence that during this twelve month period HRS had discussed with Ms. Miller any problem of receipt of medical documentation, or had occasion to warn her that it was her personal responsibility to provide medical documentation, and that her failure to do so would result in loss of her job. Such a warning, it is inferred, would have been appropriate if Nurse Patterson had failed to send medical documentation that had been previously demanded by HRS. In short, during the period from July, 1986, to July, 1987, it must be concluded that whatever system of medical documentation was then required by HRS, if any, was complied with satisfactorily. On July 28, 1986, Ms. Miller was warned by her supervisor that she had a personal responsibility to keep HRS informed concerning her medical condition. The warning on this date was prompted by the fact that HRS was then not receiving medical documentation that it needed. The relevance of this warning with respect to the period of June and July, 1987, is diminished for several reasons. First, this warning occurred a year before, and there is no evidence of any failure in the intervening 12 months by Ms. Miller to satisfy HRS's needs for medical documentation. Further, the July, 1986, incident occurred because Ms. Miller then did not have a rehabilitation nurse assigned to her case, and thus had no medical representative to send medical information to HRS for her. But more important, as discussed in the preceding paragraph, when Nurse Patterson and her predecessors were assigned to Ms. Miller, Ms. Miller relied upon them to send medical information. The system apparently worked, since there is no evidence of a dissatisfaction by HRS with medical documentation after July, 1986, until the letter of July 22, 1987. The medical documentation was still not received by Ms. McKinley on August 10, 1987. Ms. Miller did not report to work in the period from July 22, 1987, to August 10, 1987. On August 10, 1987, HRS by letter notified Ms. Miller that HRS concluded that Ms. Miller had abandoned her position. Ms. Miller did not learn that Ms. McKinley had not received the medical documentation until she received the letter of August 10, 1987. On August 18, 1987, Ms. Miller requested a formal administrative hearing concerning the conclusion that she had abandoned her position.
Recommendation It is therefore recommended that the Department of Administration enter its final order finding that the Petitioner, Tommie Miller, did not abandon her position with the Department of Health and Rehabilitative Services by being absent from her job for three consecutive workdays without authorized leave. DONE and RECOMMENDED this 17th day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988. APPENDIX To Recommended Order in Case No. 87-4136 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used designate the unnumbered paragraphs used by the Petitioner, in sequence. Findings of fact proposed by the Petitioner: Fourth sentence, there is no transcript, and the Hearing Officer's notes do not record the testimony that the medical excuse "indicated that the estimated Date of Return to Duty as unknown." The Hearing Officer has no independent memory of such testimony sufficient to conclude that this proposed finding of fact is true. The same is true with respect to the sentence: "Ms. Miller advised McKinley that she had been to see Dr. Richard P. Newman, M.D. on July 22, 1987." If the record reflected that Ms. Miller so testified, the Hearing Officer would make this finding of fact, since there was no reason to disbelieve Ms. Miller's testimony, and Ms. McKinley testified that she could not remember. Ms. Miller's testimony, as well as Ms. McKinley's testimony, appeared to be honest and straightforward, testifying to the truth both remembered at the time of testifying. The last sentence is not relevant. The first and third sentences are rejected since no one from Woods Rehabilitation Services testified. There is no evidence in the record that Ms. Patterson in writing told Ms. Miller that she advised Ms. McKinley of Ms. Miller's continued disability, and thus that portion of the sixth sentence is rejected. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Linoria Anthony AFSCME Council 79 345 South Magnolia Drive Suite F-21 Tallahassee, Florida 32301 James A. Sawyer, Jr., Esquire District VII Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida 32801 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 =================================================================
The Issue The issue in this case is whether Celeste H. Tiemsanguan (Petitioner) abandoned her career service position with the Department of Health and Rehabilitative Services (Respondent).
Findings Of Fact Petitioner was employed as a clerk specialist with Respondent from October, 1988 until the end of December, 1988, and during such employment was a member of the career service system. The last day on which Petitioner worked was December 21, 1988. Petitioner brought a note to the home of her supervisor at 7:30 a.m. on December 22, 1988, stating that, "Effective this date I request six months maternity leave, with the Doctor's excuse to follow . . . ." Petitioner never provided a doctor's statement certifying her pregnancy, with specific beginning and ending dates for maternity leave, as required by the Respondent's Procedure No. 60-5 which governs leave without pay. By letter dated December 22, 1988, the Respondent attempted to notify the Petitioner that she needed to submit a doctor's statement prior to her leave being approved. This letter was sent by certified mail, return receipt requested, to Petitioner's last known address. However, it was returned to the Respondent as undeliverable. Petitioner did not report to work and made no further contacts with Respondent after December 22, 1988. She never provided a doctor's certification. On December 29, 1988, Petitioner was deemed to have abandoned her position, and notice of her abandonment was mailed to her on that date by certified mail, return receipt requested. Again, this letter could not be delivered. It became known to the Respondent on January 3, 1989, that Petitioner was in jail, and personal service of this notice of abandonment was accomplished by Betty Maddux, her immediate supervisor, on that date. Petitioner refused to sign acknowledging receipt of this letter. Petitioner did not properly request approval of maternity leave because she never provided a medical certification. She abandoned her position because she never received approval from Respondent for maternity, or any other type of leave. Therefore, between December 22 and December 29, 1988, Petitioner was absent without approved leave for three consecutive work days. Notice of the final hearing was sent to Petitioner at her last known address of record, and was not returned as undelivered. In fact, the Petitioner ordered subpoenas from the Division of Administrative Hearings on July 13, 1989. The final hearing had previously been continued one time at the request of the Petitioner.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service system. DONE AND ENTERED this 14th day of September, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1989. COPIES FURNISHED: Barbara McPherson, Esquire District Legal Counsel 701 94th Street North St. Petersburg, FL 33702 Celeste H. Tiemsanguan 628 88th Avenue North, #2 St. Petersburg, FL 33702 John Miller, Esquire General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Gregory Coler, Secretary 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Larry Scott, Esquire 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel 435 Carlton Bldg. Tallahassee, FL 32399-1550 A. J. McMullian, III Interim Secretary Dept. of Administration 435 Carlton Bldg. Tallahassee, FL 32399-1550
The Issue Whether Kennie W. McKay should be deemed to have abandoned his position and to have resigned from the Career Service on account of his absence from work on March 10, 13, 14, and 15, 1987?
Findings Of Fact Some 18 years ago, when petitioner Kennie W. McKay began working at the Dozier School in Marianna, he received a copy of the employee handbook the Department of Health and Rehabilitative Services (HRS) published at the time. A more recent edition, dated June 1, 1986, provides, in part: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness, injury, exposure to a contagious disease, or the illness or injury of a member of your immediate family. Your supervisor should also be given an estimate of the length of the absence. Medical certification may be requested. Respondent's Exhibit No. 3, p. 19. It was not clear from the evidence either that this language appeared in the edition Mr. McKay was furnished when he began work, or that he had ever seen the edition which came into evidence without objection. On June 1, 1983, the Dozier School adopted "POLICY AND PROCEDURE #:035" requiring advance approval of leave, except when "illness or a bona fide emergency" occasions the absence. In that event, the policy specifies that the employee must contact his/her supervisor as soon as possible. If he/she is unable to contact his/her immediate supervisor, the employee must contact the next higher level supervisor or someone in his/her normal chain of command. Leaving messages with the switchboard, coworkers, or other uninvolved staff will not be considered adequate notice. The employee is to notify his/her supervisor and only in situations where the employee is unable to contact the supervisor himself/herself will a call/contact from another person be acceptable. * * * (6) Employees displaying a pattern of unplanned absences may be suspected of abusing their leave privileges and may be subject to appropriate corrective action in accordance with HRSP 60-1 State Personnel Rules (Chapter 22A-8 and HRSR 60-51). Respondent's Exhibit No. 5, pp. 1 and 2. HRS has not promulgated this "policy and procedure" as an administrative rule. Direct evidence did not establish to what extent, if at all, petitioner McKay was aware of its existence or its provisions. But his efforts to reach the man he thought to be his immediate supervisor, James R. Kersey, suggest he believed he was required to try to do so. In his letter of February 23, 1987, the Dozier School's superintendent, Roy C. McKay, no relation to petitioner, advised petitioner McKay that Mr. Kersey would become his immediate supervisor upon petitioner's demotion from carpenter to house parent. In part, the letter stated: This is official notification that you are being demoted from Carpenter, position number 01082, to Houseparent, position number 01188. You are to report to Friendship House on the 10:00 p.m. to 6:00 a.m. shift, effective Friday, February 27, 1987, or the first day you return back to work. 1/ Your immediate supervisor will be Mr. James Kersey, Houseparent Supervisor I; and your days off will be Wednesday and Thursday. Respondent's Exhibit No. 1. Like Mr. Kersey, Mr. James Pyles and Mr. Jethro Pittman were house parent supervisors I assigned to Friendship House. Each supervised a different shift. Houseparent supervisors I reported to Norman Harris, who reported to assistant superintendent Pate, who reported to superintendent McKay. On every shift, an administrative duty officer has campus-wide responsibility. The administrative duty officer is also in the chain of command. Petitioner McKay did not learn until after he was told he no longer had a job that Mr. Harris was to be in the chain of command, because he did not see Mr. Harris' memorandum of March 10, 1987, until after March 16, 1987. In this memorandum, Mr. Harris advised: YOUR IMMEDIATE SUPERVISOR WILL BE JAMES PYLES, HOUSEPARENT SUPERVISOR I. YOUR NEXT HIGHER SUPERVISOR BILL BE ME, MR. NORMAN HARRIS. Respondent's Exhibit No. 8. Written communications addressed to petitioner McKay dated on and after March 10, 1987, were placed in "his box," but Superintendent McKay was aware that petitioner McKay did not see them on or before March 16, 1987. Before the superintendent's letter of February 23, 1987, gave "official notice" of the demotion, the two Messrs. McKay and others met in the Dozier School's conference room, on February 20, 1987. Petitioner McKay told those present that he had a doctor's appointment in Columbus, Georgia on March 10, 1987. As the superintendent understood it, the doctor had earlier warned against petitioner's overexerting himself, even against his walking too far. Everybody knew he was on leave on account of his medical condition at the time of the conference; he was, in fact, demoted because he was not physically able to discharge the duties of a carpenter. Evidently because he told the superintendent that he had a "sick slip through the ninth," the superintendent directed him to report on the tenth. Whoever drew the work schedule put him down as beginning his new assignment on March 9, 1987. As it happened, somebody in the doctor's office in Columbus called petitioner McKay's wife on March 9, 1987, and rescheduled the appointment for March 11, 1987. Deciding not to report for work before seeing the doctor, Kennie McKay telephoned the Dozier School on the tenth to let them know. Twice he reached Mr. Bridges, who was working the day shift as a house parent at Friendship House. He told Mr. Bridges he was not coming in to work that night. He asked each time to speak to Mr. Kersey. Each time Mr. Bridges told him Mr. Kersey was not there. Although Friendship House is the most secure cottage at the Dozier School and the locus of the school's "intensive supervision program," which is designed to calm boys down who are "in an uproar," the work on the night shift is not physically demanding. The boys are supposed to be asleep, and a house parent can call for reinforcements if problems arise. The houseparent can lock himself in a "crime cage" out of reach of the inmates, and could do his duty, which is mainly to observe, on crutches, if necessary. Nevertheless, when petitioner McKay visited the doctor in Columbus on March 11, 1987, he obtained a form from the doctor's office stating "out of work until next visit in 3 wks." Respondent's Exhibit No. 12. After he reached Marianna, he telephoned the Dozier School at 7:46 p.m. that evening. Charles Gardner, Jr., who was working as a house parent at Opportunity Cottage, took the telephone call. Mr. McKay told him he could not come to work that night, that he had been to see a doctor, that he had a doctor's excuse, and that he needed to talk to a night supervisor. While they were talking, Luther L. Spurlock, a house parent supervisor II in charge of a cluster that did not include Friendship House, entered the room, and took the phone from Mr. Gardner, who handed it to him. Petitioner McKay told Mr. Spurlock, "I'll be in tomorrow with a doctor's slip for Danny." After the phone call was over, Mr. Spurlock said to Mr. Gardner, "I'm not McKay's supervisor," or words to that effect. A form filled out toward the end of the shift stated: Kenny McKay called and said that he would be at the school tomorrow with a doctor slip to give Mr. Pate. Everything went well tonight no major problems. Respondent's Exhibit No. 10. Mr. Spurlock did not tell the petitioner that he ought to notify anybody else about his continuing absence. Kennie McKay had not been scheduled to work on March 11, 1987, in any event. His next scheduled work day was March 13, 1987. Respondent's Exhibit No. 7. On March 13, 1987, he telephoned the superintendent's office but, when told he was in a meeting, asked to speak to Bruce Gambill, Dozier School's business manager , instead. Mr. Gambill answers directly to the superintendent. He told Mr. Gambill "that he had been to the doctor and had a sick slip to be out of work." Respondent's Exhibit No. 11. Mr. Gambill asked him to bring a copy of the slip to the business office for Workers Compensation purposes ... [and] instructed Mr. McKay to contact his supervisor concerning the sick slip and being out of work. [Petitioner] said he had tried to call, but there was no answer. [Mr. Gambill] told him he needed to let his supervisor know about the sick slip. Respondent's Exhibit No. 11. Petitioner had telephoned that morning at 10:24 from Marianna, Petitioner's Exhibit No. 1, but he had not reached Mr. Pittman, the supervisor, who testified he might have been on an errand then. Whether Petitioner tried again to reach a supervisor after speaking to Mr. Gambill is not clear. James Pyles, the man who, although petitioner did not know it at the time, became the latter's supervisor on March 10, 1987, asked superintendent Roy McKay's permission to use a state car about three o'clock that afternoon to find out if Kennie McKay was going to come to work. Mr. Pyles drove to Dothan, Alabama, where he found petitioner walking around without crutches in an establishment known as Shag's. He did not tell petitioner that he had been made his supervisor or suggest that, since he did not seem to need crutches, petitioner come to work. The following night, as well, Mr. Pyles saw Mr. McKay getting around without crutches. On that occasion, too, Mr. Pyles refrained from any discussion relating to work at Dozier School. When Kennie W. McKay brought the doctor's slip, Respondent's Exhibit No. 11, to Dozier School on March 17, 1987, he was informed he no longer had a job.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration rule that Kennie W. McKay has not abandoned his position with the Department of Health and Rehabilitative Services, and has never lost his membership in the Career Service. DONE AND ENTERED this 28th day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II 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, 1987.
The Issue Whether or not Petitioner, pursuant to Rule 6C-770 F.A.C., abandoned her position as a Secretary Specialist, thereby resigning from Florida State University by being absent without leave for three consecutive days.
Findings Of Fact At all times material, Petitioner, Teresa Loewy, was employed as a Secretary Specialist in the Department of Educational Leadership at Florida State University (FSU). On October 22, 1989, Petitioner Loewy reported that she had suffered a head injury as a result of an on-the-job accident. That same day, she was seen at Tallahassee Memorial Regional Medical Center and released. On October 23, 1987, FSU placed Petitioner on administrative leave for 40 hours. Contact was made by Petitioner and her husband, Mr. Samuel Loewy, with Dr. David Leslie, Department Chairman, with Nina Mingledorff, Department Staff Assistant and Petitioner's immediate supervisor, and with Motney Gray, FSU Workers' Compensation Supervisor. The Loewys were informed that a worker's compensation report had been completed and forwarded by the Department to Ms. Gray. This is the first formal step in an employer acknowledging that workers' compensation or medical benefits may be due a worker pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law." By letter dated November 3, mailed November 5, and received by Petitioner on November 10, 1987, Chairman Leslie informed Petitioner in pertinent part as follows: As you may be aware, you have been on disability leave for a 40 hour work period. Beyond that limit, this office will not certify any additional leave for you unless we receive medical proof that you are unable to return to work. Although you may apply for workers' compensation, I believe that similar proof will be required by that office. Absent any further communication from you and absent proof to the contrary, we assume that you are capable of returning to work and have elected not to do so (R-3). By letter of November 5, 1987, (R-9) Motney Gray notified Petitioner that Ms. Gray's communications with Joe D. Rawlings, M.D. had convinced Ms. Gray that Petitioner was not still impaired and was able to work and that Ms. Gray was terminating workers' compensation medical benefits and Petitioner's disability leave as of that date. By letter dated November 12 and received November 13, 1987, Robert L. Lathrop, Dean of the College, informed Petitioner as follows: Based on Motney Gray's letter of November 5, to you, we are hereby notifying you as of 8:00 a.m. November 6, you have been on unauthorized leave. Because of your unauthorized leave of absence, I am writing this letter to determine your intentions concerning continued employment at Florida State University. You must report for work immediately, or provide your supervisor, Mrs. Nina Mingledorff, with appropriate medical certification by 4:30 p.m., Monday, November 16, or it will be assumed you have voluntarily resigned due to abandonment of your position. (R-1) In response, on November 16, 1987, Mr. Loewy, on behalf of his wife, delivered to the Department a handwritten note from Dr. Rawlings, (R-2) which read: To whom it may concern: Mrs. Teresa Loewy is still under my care for headaches dating back to her injury on 10-22-87. At that point in time, Dr. Rawlings could be accurately characterized as Petitioner's primary treating physician pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law". Copies of this letter were seen by Nina Mingledorff and by Annette Roberts, FSU Employee Labor Relations Coordinator. On November 17, 1987, Petitioner and Mr. Loewy, together with another couple, visited Petitioner's workplace. Their purpose was to have Petitioner physically on the employment premises to demonstrate that Petitioner was unable to work due to her injury. At that time, the Loewy faction spoke with Annette Roberts, with John Goldinger, Assistant Personnel Director, and with Dean Lathrop. Initially, Petitioner was given a termination letter prepared for the Dean's signature, based upon Petitioner's three consecutive days' absence without prior authorization, which letter was as yet unsigned. However, as a result of the Loewy faction's face-to-face interview with Dean Lathrop, a new memorandum was prepared and actually signed by the Dean. This second communication was addressed to John Goldinger and read as follows: I am hereby authorizing leave of absence for Ms. Teresa A. Loewy beginning November 16, 1987, at 3:00 p.m. and ending no later than 10:00 a.m. on November 20, 1987. The purpose of this leave is to provide time for Mrs. Loewy to secure medical certification that she is unable to drive herself to work. (R-4) The effect of this memorandum, signed by Dean Lathrop and handed to Petitioner, was to supersede his other unsigned/unconsummated correspondence attempting to terminate her under the three days' absence rule. On November 20, 1987, Mr. Loewy obtained a two page letter from Dr. Rawlings (R-6) dated the preceding day. That letter, which Mr. Loewy was unable to pick up at Dr. Rawlings' office in Thomasville, Georgia, until shortly after the 10:00 a.m. November 20 deadline established by Dean Lathrop's November 17 signed memorandum, may be summarized as follows: Dr. Florek, a board certified neurologist had diagnosed Petitioner as having post-concussive syndrome on October 29, 1987. Sometime between November 3 and 6, Dr. Bridges, an opthomologist had diagnosed her eye examination as "essentially within normal limits". With the concurrence of FSU's Motney Gray, Petitioner was scheduled for an MMPI (a psychological assessment), the results of which had not yet been received on the date of Dr. Rawlings' letter, November 19, 1987. She was also scheduled for an MRI (magnetic resonance imaging, a type of x-ray particularly helpful in determining head and soft tissue injuries) which was scheduled for November 24, 1987. Dr. Rawlings confirmed that the Petitioner continued to come to him with the subjective complaints of headaches, blurred vision, and diplopia. The overall tone of his letter is that Dr. Rawlings thought Petitioner could work as of November 19, 1987, although he did not specifically say so. His rather vague summation was, "I have relayed to Mrs. Loewy [on] a number of occasions that I feel this problem will be self limited and that all attempts will be made on my part to not give her any type medication which might be habit forming." (R-6) On his wife's behalf, on November 20, 1987, at approximately 11:30 a.m., Mr. Loewy presented Dr. Rawlings' November 19, 1987 letter in a sealed envelope to Evelyn Ashley, Dean Lathrop's Administrative Assistant, and also gave a copy of it to Nina Mingledorff. Dean Lathrop was not in the workplace that day. During the time he was at Petitioner's workplace on November 20, 1987, Mrs. Ashley presented Mr. Loewy with a request form for a leave of absence without pay. She and others emphasized to him that the completed form must specify a date the Petitioner could return to work, a fact clearly in contention at that point. He was requested to have Petitioner complete the form and return it. He was not told how long Mrs. Loewy would have in which to complete and return the form. From this point forward the testimony is in sharp conflict. It is debatable whether Mr. Loewy was concerned about the effect such a "form" request might have upon his wife's job status or her incipient workers' compensation claim, whether he merely felt she was entitled to leave with pay, or whether he was ever told he could sign the form for his wife. It is clear, however, that Mr. Loewy refused to complete the form on Petitioner's behalf and also refused to take it to her unless he could add a notation to the form that her job would not be jeopardized by requesting such voluntary leave. Having assessed the candor and demeanor of the respective witnesses and the internal and external credibility and consistency or lack thereof of their respective versions of the events and conversations of November 20, 1987, it is found that FSU personnel refused to permit any additions or deletions to the form. They also refused to permit Mr. Loewy to submit a separate explanatory note with regard to the Loewys' position on the subject, even though it was John Goldinger's view at the time of formal hearing that it had always been normal FSU procedure to permit attachments and addendums to other requests for leave without pay. The standard forms requesting leave without pay which were presented by FSU employees to Mr. Loewy therefore were never given to Petitioner, completed by her, or submitted by the Petitioner to the University, although Mr. Loewy was repeatedly told that Petitioner's job would not be held for her unless the forms were filled out and submitted. Dr. Rawlings' November 19 letter (R-6) was not transmitted by his subordinates to Dean Lathrop at or near the time Mr. Loewy submitted it to them. Neither did Chairman Leslie contemporaneously see Exhibit R-6. According to Dr. Leslie, no one below his administrative level had the authority to determine the sufficiency of that "excuse" and the appropriate person to have decided that issue would have been Dean Lathrop. Annette Roberts and John Goldinger agreed that leave requests often went through Dean Lathrop. Although the Dean might not vary duly promulgated rules, the evidence as a whole, including Dean Lathrop's prior informal extension of Petitioner's leave, supports Annette Roberts' assertion that Dean Lathrop had the discretion to either effect the abandonment or increase the grace/leave period he had previously granted Petitioner. Thereafter, Petitioner never did return to work. On Wednesday, November 25, 1987, Dean Lathrop, unaware of the contents of the November 19 letter from Dr. Rawlings, and therefore never having decided on its sufficiency or lack thereof, prepared the following termination letter to Petitioner: You have been absent without leave of absence for 3 or more consecutive workdays . . . [Rule 6C-5.770(2)(a) is quoted] . . . Based on the above stated rule, you are deemed to have resigned from your position. . . effective this date, November 25, 1987 at 10:00 a.m. (R-10) Bracketed material and emphasis provided] It is clear from the foregoing, that regardless of Petitioner's not having submitted any leave without pay request forms, and regardless of Petitioner's nebulous status as to leave after her initial 40 hours disability leave (See Findings of Fact 4-9 supra), Dean Lathrop counted toward implementation of the three days' abandonment rule only the three consecutive "working days" (presumably 24 work hours) elapsing after his own ultimatum time and date of 10:00 a.m., November 20. The Dean's reasoning, as explained by him at formal hearing, was that the Petitioner had not requested a leave of absence. Evelyn Ashley stated that she had told Dean Lathrop both that the doctor's letter (R-6) had been submitted and also that the Dean could do nothing about processing leave for Mrs. Loewy because R-6 had to be attached to a "request for leave form" and that "form" had not been submitted by the Petitioner. Dean Lathrop testified that if he had seen R-6 and still had any doubts of its sufficiency, he probably would have approved leave on the same basis as he had on November 17, at least until he had the opportunity to consult medical personnel further. It was never determined by FSU personnel prior to formal hearing whether the December 19 communication from Dr. Rawlings (R-6) was sufficient under the terms of the Dean's November 17 memorandum granting further leave up to 10:00 a.m., November 20, 1987. As of Friday, November 20, 1987, Petitioner had only 1.7 hours annual leave and 3.5 hours sick leave status to draw upon. After her separation date, Petitioner was paid for 1.7 hours of accrued annual leave; she was not paid for any accumulated sick leave. Subsequently, Petitioner and FSU became embroiled in workers' compensation litigation and entered into a "Stipulation and Joint Petition" which was adopted and approved by an Order of the Deputy Commissioner dated August 8, 1988. (P-3) 1/ Admitted facts found therefrom which are relevant, material, and significant to the instant cause and which are not cumulative to any of the facts found supra, are as follows: . . . She [Petitioner] was scheduled for an MMPI which was done on November 20, 1987. An MRI scan of the brain was done November 23, 1987 and was interpreted as normal. . . . Dr. Bridges examined the Employee [Petitioner herein] on 11/3/87 and found irregular visual fields, more constricted in the right eye, but otherwise normal examination. The employee was then seen by Dr. Thomas J. Perkins who diagnosed occipital syndrome on the right side and recommended treatment by Dr. Seay. . . . The employer/carrier and employee/claimant stipulate and agree that the maximum medical improvement date is April 25, 1988, pursuant to the medical report of Dr. James T. Willis. [Bracketted material provided] It is clear on the record that Motney Gray, FSU's Coordinator for Insurance Risk, informed Dr. Rawlings on several occasions that it was "possible" that workers' compensation would pay for another employee to transport Petitioner from her home in Thomasville, Georgia, to work at FSU in Tallahassee, Florida, but it is not clear that this offer was ever made any more concrete than as a "possibility", and the offer apparently was never made directly to the Petitioner by any representative of FSU. It is clear that, at some point, Dr. Rawlings conveyed this offer to the Petitioner, but it is not clear on the record that this information ever reached Petitioner at any time prior to November 25, 1987 and simultaneously with a period she also was not taking a drug prescribed by some physician. Petitioner was treated, not just by Dr. Rawlings, but by Doctors Florek, Bridges, Seay, Willis, Hogan, and Perkins. At some point in time, Dr. Willis, a chiropractic physician, became Petitioner's primary treating physician. Moreover, it is clear that Dean Lathrop, who was Petitioner's only superior with authority to determine the sufficiency of the letter of certification (R-6), was concerned about Petitioner's ability or inability to drive herself, not whether someone else could or would drive her to work. In addition to the oral communications to Mr. Loewy on November 20, FSU had directly advised Petitioner concerning the general nature of its abandonment rule and of FSU's requirements for prior approval of all leave requests, first by circulating standard informational documents to all employees, and secondly, by its various letters to Petitioner which are described supra. The parties stipulated that in the event abandonment was not proven, any back wages awarded to Petitioner should be subject to all appropriate class pay increases, and should be reduced by the workers' compensation and unemployment compensation already paid to Petitioner, and should be further reduced by any income earned by her.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered: Finding Petitioner has not abandoned her position. Reinstating Petitioner to her position. Ordering payment of backpay and emoluments from November 25, 1987, less unemployment and workers compensation paid by Respondent and less mitigation earnings of Petitioner, pursuant to the parties' stipulation. Denying any attorney's fees. DONE and ENTERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. 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 5th day of October, 1989.
