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.
Findings Of Fact On February 4, 1991 the Petitioner met with Peter Bond the Department's Regional Toll Manager for the Tampa Bay Region and Delene Wilson the Department's Toll Facility Supervisor at the Sunshine Skyway Bridge concerning a transfer to the Tampa Bay Region from her then present position as a Toll Collector in Miramar, Florida. As a result of these meetings with Bond and Wilson, Petitioner was offered a position as Toll Collector on the Sunshine Skyway Bridge. The Petitioner preferred the first shift in order to be available to see about her children when they got out of the day care center. Wilson advised the Petitioner that there may be a first shift opening but that unless that worked out there was only a second shift available. Petitioner understood this when she accepted the position and started the process of transferring. As it turned out, the first shift did not become available and Petitioner was placed on the second shift. Additionally, Wilson was able to transfer another Toll Collector from the north end of the bridge to the south end of the bridge so that Petitioner could work the north end which was closer to her home. With everyone thinking that Petitioner's transfer would be effectuated by February 15, 1991, the Petitioner was placed on the work scheduled for February 15, 1991 through February 28, 1991. As it turned out, Petitioner's last day at Miramar was February 26, 1991. As a result, Petitioner was placed on a new work schedule of March 1, 1991 through March 14, 1991. However, because Petitioner had just moved and needed to get things straightened out, Wilson placed Petitioner on authorized leave without pay (Petitioner had no leave time accumulated) for March 1-2, 1991. Petitioner's regular days off would have been March 3-4, 1991 which required her to report for work on March 5, 1991. The Petitioner did not report for work on March 5, 1991 or at any time during the two week work schedule of March 1 through March 14, 1991. Wilson covered the Petitioner's shift on a day to day basis which did cause the other employees some hardship. From March 7, 1991 Wilson called Petitioner on a daily basis but was unable to reach anyone until March 12, 1991 when she talked to Petitioner's husband, Brian and ask that he have Petitioner call Wilson as Wilson needed her to work. Petitioner did not return this call notwithstanding that her husband gave her that message on March 12, 1991. On March 14, 1991, while Bond was in Wilson's office, Wilson called Petitioner and Petitioner answered the phone. When asked why she had not reported to work the Petitioner explained that she was attending school to better herself and that she could not work the second shift because she had no one to take care of her children after they got out of the day care center. During this telephone conversation on March 14, 1991 Petitioner requested a six month leave of absence without pay, Petitioner was advised by Bond, through Wilson, that Petitioner could file for a leave of absence without pay but she must report for work that day or otherwise she would be considered as having abandoned her position and resigned from career service which would result in her termination. Petitioner did not report for work that day, March 14, 1991 and even though she was on work schedule through March 28, 1991 did not report for work any day thereafter through March 28, 1991 when she was advised by Bond of her termination by letter referred to in Finding of Fact 2 above. Petitioner understood that her transfer would not cause a break in service and that any time off had to be on her regular days off or by authorized leave of absence. Petitioner also understood that since she had no accumulated annual leave any leave time would have to be sick leave or authorized leave of absence without pay. Except for March 3-4, 1991, Petitioner neither applied for, nor was granted, any sick leave or unauthorized leave of absence without pay between March 1, 1991 and March 28, 1991. Between March 1, 1991 and March 28, 1991 the Petitioner was attending school and working on jobs other than with the Department that allowed her to work the first shift. There is sufficient competent substantial evidence to establish that Petitioner intended to abandon her position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Department of Administration enter a Final Order (1) finding that Petitioner did abandon her position with the Department and resigned from career service, and (2) denying the Petitioner any relief. DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Petitioner did not submit any proposed findings of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. As to the receipt of letter it is adopted in Finding of Fact 3. As to reading the letter the date was sometime around April 6, 1991 and in that regard proposed finding of fact 2 is rejected. See Finding of Fact 4. Not material or relevant since the date letter is postmarked controls and that was earlier than May 30, 1991. Covered in Preliminary Statement. - 7. Not material or relevant. Adopted in substance as modified in Finding of Fact 8. - 14. Adopted in substance as modified in Findings of Fact 9, 7, 7, 9, 10, and 9, respectively. Not material or relevant since Wilson had placed Petitioner on authorized leave of absence without pay on March 1-2, 1991. See Finding of Fact 10. - 17. Adopted in substance as modified in Findings of Fact 11 and 12, respectively. Not material or relevant. The first phrase of proposed finding of fact 19 is adopted in substance as modified in Finding of Fact 12. The second phrase of proposed finding of fact 19 is not supported by the record but see Finding of Fact 12. While the record reflects that Petitioner may have been pregnant, the record does not reflect that her pregnancy would have prevented her from returning to work. - 23. Adopted in substance as modified in Findings of Fact 13, 16 and 12, respectively. Not supported by substantial competent evidence in the record. Adopted in substance as modified in Finding of Fact 13. Goes to credibility and not a finding of fact. 27.-28. Adopted in substance as modified in Finding of Fact 14. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Angelita K. Coley Davis 5919 S. Dale Mabry Apt. A Tampa, FL 33611 Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458
The Issue Whether or not Petitioner is entitled to developmental services under Chapter 393 F.S.
Findings Of Fact As of September 14, 1994, Antonio M. King applied for and was denied developmental services pursuant to Chapter 393 F.S. DHRS turned down Mr. King's application because his IQ score exceeded their guidelines. By and through his mother, Mr. King timely requested formal hearing on whether he is entitled to a program that will teach him basic life skills sponsored by TARC and funded by DHRS, pursuant to Section 393.125 F.S. As the Petitioner herein and applicant for services, Mr. King bore the burden of proof and duty to go forward to present evidence in this case. Neither Mr. King nor anyone on his behalf appeared at the date and time noticed for formal hearing. After a grace period of one half hour beyond the time noticed formal hearing, the undersigned inquired of the DHRS attorney and his witness, Cyndena Hall, if they had nay indication that Petitioner had not received the notice of hearing or any knowledge why Petitioner had not appeared. Both reported that the address on the notice of hearing was the last address they had for Petitioner. Because the notice of hearing was not returned by the post office, the presumption is that Petitioner and his mother received notice of formal hearing and chose not to appear to present their case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health and Rehabilitative Services enter a final order dismissing Petitioner's September 14, 1994 request for services and specifying when he may reapply for services. DONE and RECOMMENDED this 10th day of May, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1995. COPIES FURNISHED: Antonio M. King c/o Mary G. Jones 121 Beverly Street Perry, Florida 32347 John Perry, Esq Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399
The Issue Whether or not existing rule 59A-12.006(3)(d) F.A.C., the Health Maintenance Organization (HMO) rule, constitutes a valid agency exercise of delegated legislative authority.
Findings Of Fact Existing Rule 59A-12.006(3)(d) F.A.C. provides: 59A-12.006 Quality of Care. Each HMO or PHC shall: Ensure that the health care services it provides or arranges for are accessible to the subscriber with reasonable promptness. Such services shall include, at a minimum: (d) Average travel time from the HMO geographic services area boundary to the nearest primary care delivery site and to the nearest general hospital under arrangement with the HMO to provide health care services of no longer than 30 minutes under normal circumstances. Average travel time from the HMO geographic services area boundary to the nearest provider of specialty physician services, ancillary services, specialty inpatient hospital services and all other health services of no longer than 60 minutes under normal circumstances. The AHCA shall waive this requirement if the HMO provides sufficient justification as to why the average travel time requirement is not feasible or necessary in a particular geographic service area; The existing rule in final form, supra, was adopted in February 1992 following extensive "workshopping" and other public hearing procedures. There is no suggestion herein that there are any enacting defects with regard to this rule. Validity of the rule is challenged solely under Sections 120.52(8)(c), (d), and (e) F.S. [1992 Supp.]. The grounds of invalidity alleged are that: The rule enlarges, modifies, or contravenes the specific provisions of the law implemented, i.e., Section 641.49, Section 641.495(3) and Section 641.56, F.S.; The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary and capricious. Petitioner, Healthplan Southeast, Inc., (Healthplan), is a Florida corporation based in Tallahassee, Florida, and is a health maintenance organization (HMO) which provides comprehensive health care services to its subscribers. Petitioner has requested a waiver under the challenged rule. The agency's denial of that request for a waiver is the subject of DOAH Case No. 93- 2606, and involves disputed issues of material fact. Respondent, Agency for Health Care Administration (AHCA), is the state agency charged with the responsibility of implementing, interpreting, and enforcing the rules adopted pursuant to the authority set forth in Section 641.56, F.S. The Department of Health and Rehabilitative Services, (HRS), adopted Rule 10D-100.006(2)(a), the predecessor to Rule 59A-12.006(3)(d) as an agency rule in 1988. At the time of adoption of Rule 10D-100 in 1988, Ralph Gray was Unit Manager of the Managed Care Unit at HRS and was responsible for promulgating and implementing the rule. At the time Mr. Gray inherited the responsibility of promulgating Rule 10D-100, some preliminary work had already been performed and a draft rule existed which already included a requirement that the average travel time to the nearest primary care delivery site or the nearest institutional service site be thirty minutes or less. Mr. Gray accepted the draft that he inherited and moved forward with the rule adoption process without doing any independent investigation to determine the origin or validity of the thirty minute average time requirement. The rule as it was originally adopted in 1988, provided that HMOs should ensure that health care provided for subscribers was accessible with reasonable promptness by ensuring that the average travel time from an HMO geographic service area boundary to the nearest primary care delivery site or to the nearest institutional service site would be no longer than thirty minutes under normal circumstances. The specific language of the rule, as it existed from 1988 until February 1992, simply required an HMO to ensure that a subscriber had access to either a primary care delivery site or an institutional service site within an average travel time of thirty minutes. The rule as it was applied by the agency from 1988 until February 1992 did not require that an HMO provide a subscriber access to both a primary care delivery site and an institutional service site within thirty minutes. Neither did the rule as applied from 1988 to 1992 require that the institutional service site be under contract with the HMO. Amendments to Rule 10D-100 were proposed in 1991 in response to amendments to Chapter 641, Part IV, F.S. enacted by the 1991 Legislature and to establish additional quality of care standards for HMOs and Prepaid Health Clinics (PHCs). In 1991-1992, Ralph Gray was again the person in charge of implementing amendments to Rule 10D-100 that were necessary in order to comply with the statutory changes in 1991. Mr. Gray assembled a team to assist him in the rule adoption process. In addition to Mr. Gray, the team consisted of Linda Enfinger, Registered Nurse Specialist with the agency's HMO Unit and Dr. James Conn, M.D., Consultant to the Agency Office of Licensure and Certification. The rule amendments at issue herein included a change from "or" to "and" in the language of the rule which resulted in the thirty minute average travel time requirement being applicable to both primary care delivery sites and general hospitals under arrangement with the HMO to provide health care services. This change was not specifically mandated by the changes to Chapter 641 F.S. adopted by the Legislature in 1991. The change from "or" to "and" came about because of concern informally expressed to team members about HMO subscribers in northern Dade County and in Broward County having to travel long distances over considerable periods of time in congested traffic situations to obtain hospital services, and focused upon the Miami--Ft. Lauderdale population concentration corridor which is complex in roadways and traffic patterns and in its number of people and motor vehicles. There were no formal written complaints espousing the foregoing concept of traffic congestion and excessive distance to HMO provider hospitals in Dade and Broward counties, and the agency neither conducted nor commissioned any specific formal review or study to verify the presence or absence of such a problem either in Dade--Broward or in any other geographic area of the state. However, Mr. Gray reviewed listings of their providers supplied to the agency by HMOs and determined for himself that there were accessibility problems in the Dade--Broward area. No issue or concern clearly in opposition to the thirty minute average travel time restriction was raised in any workshop or public hearing during the 1991-1992 rule amendment process. Petitioner did not appear at the December 19, 1991 public hearing. Letters from the public in response to that public hearing did not contain adverse comments regarding the thirty minute travel requirement. Letters from the public during this process generally supported the time requirement upon accessibility grounds. A concomitant thrust of the public comment letters was to the effect that the agency should encourage HMOs to sign- up licensed local general hospitals in rural areas such as Madison County because of the need for such services from the HMOs. Opinion testimony offered at formal hearing herein that the thirty minute average travel time requirement as included in the predecessor rule was probably originally based on federal regulation 42 CFR 5 was speculative and unpersuasive. However, it is clear that the time limit, at least, was carried over from the 1988 HRS rule. No witness knew with certainty that the 1983 version of 42 CFR 5, dealing with the federal criteria for designating geographic areas having shortages of primary medical care professionals, was taken into consideration at the time the state's 1988 HMO rule was drafted. The 1992 version of 42 CFR 5 apparently applies to correctional institution populations who must usually have care providers travel to them, and became effective in October 1992, eight months after the new rule amendments were finally promulgated. On the other hand, the use of the thirty minute average travel time figure in CFR from 1983 to date is indicative of a continuing industry standard. Mr. Gray and Dr. Conn each had the "sense" or "impression" that thirty minutes average travel time was an industry standard. Mr. Gray's opinion in this regard was based on an absence of any serious question or challenge to this provision at any of the public meetings during the 1991-1992 rule amendment process. Dr. Conn's opinion was partly based on the same factor. However, his opinion is more persuasive because it is based, in part, upon his personal experience in the private health industry sector as Medical Director of the Capital Health Plan HMO from 1981 through 1982. During the amendment process, the agency did not conduct any formal studies to determine whether the thirty minute average travel time requirement had any validity or in any way satisfied the statutory mandate to ensure access to health care services with reasonable promptness. However, at formal hearing, the consistent and unrefuted expert medical and nursing testimony was to the effect that excessive travel time can exacerbate bone fracture, shock, and hemorrhaging. Dr. Conn specifically testified that there are many medical conditions that need to be evaluated capably within thirty minutes of the onset of symptoms. Medical physician Conn and nurse administrator Enfinger, as experts in their fields, recited factual examples from their own professional experience of emergency room protocols and general hospital "on-call" physician rosters which require response time ranging from 15 minutes to 45 minutes of notification of the occurrence of trauma. Dr. Conn testified as an acknowledged expert in managed health care that the rule's thirty minutes average travel time provision is a good and adequate interpretation of the statutory mandate of the enabling legislation at Section 641.495(3) F.S., to ensure that HMOs provide health care services to their subscribers with reasonable promptness with respect to geographic location. According to Mr. Gray, the 1991-1992 rule amendment changing the words "institutional service site" to "general hospital under arrangement with the HMO" occurred because the term "general hospital" was thought by agency personnel to be synonymous with "institutional service site" and because "general hospital" was thought to be less confusing due to generally understood industry perceptions of the term. There is no evidence in this record to the contrary. The change of terms within the rule from "institutional service site" to "general hospital under arrangement with the HMO," did not draw comments or raise concern during the rule amendment process, and Dr. Conn testified convincingly at formal hearing that a primary care physician's office would probably not have the technical equipment or personnel capabilities of treating severe emergencies, capabilities that would be present at a general hospital. HMO subscribers are in the nature of a captive audience in that they are not free to select from any provider if they wish to continue to enjoy the reduced cost benefits of the HMO provider contract. Emergency-type treatment for a subscriber must be paid for by his HMO even if that treatment was rendered in a health care facility not signed up with the HMO. Roberta Agner, administrator of Madison County Memorial Hospital, testified that the rule as amended acts to protect those subscribers receiving HMO services and the HMO itself by insuring adequate health care through the HMO. Ms. Agner's foregoing opinion is colored by the fact that without the new rule in effect, the Petitioner's HMO subscribers in Madison County may come to Ms. Agner's hospital, which is currently not signed up with Petitioner's HMO, only for life and death situations if they are to remain assured of payment of their fees by their HMO. Nonetheless, Ms. Agner's testimony is credible that HMO subscribers sometimes perceive symptoms such as acute chest pain as an emergency situation and utilize a local non-HMO facility only to discover after diagnosis and treatment that the HMO does not acknowledge the situation as a compensable emergency (life or death situation) because upon medical hindsight, the precipitating symptom is not, in fact, a heart attack. She gave several similar medical conditions that routinely result in such disputes. The greater weight of all the evidence is that prudent patients and hospital emergency rooms must treat these symptoms initially as emergencies. From this, the undersigned reasonably infers that the absence of the thirty mile rule could have a life- threatening "chilling effect" on HMO subscribers promptly seeking truly necessary emergency health care for fear of making an expensive wrong self- diagnosis. Without the challenged rule provision, a subscriber to Petitioner's HMO living in Madison County, Florida could have to travel from as far away as the Suwannee River (the eastern boundary) to Tallahassee in Leon County to receive hospital services. Without the rule, such a subscriber would have to travel sixty minutes average travel time (distance divided by legal speed limit equals time) from downtown Madison, which is not at the eastern boundary, to either provider hospital in Tallahassee. This trip's average travel time in unusual circumstances could be more than sixty minutes. As found supra, many conditions routinely require medical attention in a general hospital within 15 to 45 minutes. The rule as currently written has demonstrable impact on subscribers living in rural areas receiving health care services from their HMO promptly. Petitioner presented no evidence specifically attacking the portion of the rule providing for the sixty minute average travel time for specialty physician services, specialty inpatient hospital services, and all other health services. Petitioner complained that the agency has no uniform interpretation or guidelines for interpreting the rule's terms, "average travel time" and "normal circumstances." Despite such assertion, the rule is clear on its face. Each witness who was asked to apply the rule used standard dictionary definitions and elementary school mathematical formulas. Each witness uniformly started with the premise that distance calculated by existing roadways, divided by legal speed limits, would equal "average travel time" under "normal circumstances." All witnesses were able to list numerous hypothetical factual situations, including but not limited to weather and traffic conditions, which might render a travel time "not normal," but which would have to be weighed and considered on a case by case basis. The rule provides that the agency shall waive the average travel time requirement if an HMO provides "sufficient justification" as to why the requirement is not "feasible" or "necessary" in a particular geographic service area. Thus, an HMO which cannot meet the average travel time requirement of the rule still has the opportunity to prove the requirement ought not to apply to it, bearing the burden to go forward and the burden of proof. This is clearly a flexible standard designed to accommodate a variety of "not normal" circumstances. Petitioner's assertion that the rule is invalid because it does not establish a uniform interpretation or guidelines to supplement or explain "feasible" or "necessary," is not persuasive since, as used in the rule, these terms are clearly susceptible of interpretation by dictionary and of being applied on a case by case factual basis. Some types of evidence which agency personnel or the HRS consultant, Dr. Conn, advanced as probably going to prove "sufficient justification" were improved medical techniques, modes of transportation such as rescue flights, and unavailability of any accredited or licensed general hospitals in a given geographic service area. In such situations, the rule's waiver provision provides balance to the rule's initial thirty minute travel requirement.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law recited herein, it is ORDERED that Existing Rule 59A-12.006(3)(d) F.A.C. constitutes a valid exercise of delegated legislative authority. DONE AND ORDERED this 19th day of November, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1993. APPENDIX TO FINAL ORDER 93-2721RX The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-15 Accepted, but material unnecessary, subordinate or cumulative to the facts as found has not been adopted. 16 Rejected as not supported by the record and as unpersuasive legal argument 17-21 Accepted in part and rejected in part upon the record evidence as a whole and as covered in FOF 32-34. What is rejected is not dispositive or controlling for the reasons set out in the FOF and COL. 22 Accepted in FOF 20. Respondent's PFOF: 1-5 Accepted, but material unnecessary, subordinate or cumulative to the facts as found has not been adopted. More specifically, the excessive wordiness of the proposals as to who examined the witness or whether oral testimony was given upon direct or cross examination or upon redirect examination has been excluded as irrelevant. 6-18 These proposals amount to identification of various exhibits by a witness. The exhibits are in evidence and were considered. Immaterial matters have not been adopted. The material substance of those exhibits and the oral evidence and stipulations concerning them are covered in FOF 3, 18-21. 19-20 Rejected as stated because misleading as stated. However, official recognition was taken of 42 CFR 5 in both its forms. Its significance is covered in FOF 19- 21. Accepted, but material unnecessary, subordinate or cumulative to the facts as found has not been adopted. Rejected as stated because not comprehensive of all testimony as stated. Covered in FOF 5, 32, and 34 as supported by the record as a whole. 23-30 Accepted, but material unnecessary, subordinate or cumulative to the facts as found has not been adopted. More specifically, the excessive wordiness of the proposals as to who examined the witness or whether oral testimony was given upon direct or cross examination or upon redirect examination has been excluded as irrelevant. Additionally, proposals which amounted to no more than identification of exhibits were excluded as subordinate. The exhibits themselves together with relevant testimony have been considered and facts found accordingly. 31-32 Rejected as stated because misleading as stated. However, official recognition was taken of 42 CFR 5 in both its forms. Its significance is covered in FOF 19- 21. 33-35 Accepted, but material unnecessary, subordinate or cumulative to the facts as found has not been adopted. More specifically, the excessive wordiness of the proposals as to who examined the witness or whether oral testimony was given upon direct or cross examination or upon redirect examination has been excluded as irrelevant. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 325 John Knox Road, Suite 301 The Atrium Building Tallahassee, Florida 32303 John C. Pelham, Esquire Pennington, Haben, Wilkinson, Culpepper, Dunlap, Dunbar, Richmond, and French, P.A. Post Office Box 13527 Tallahassee, Florida 32317-3527 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium Building, Suite 301 Tallahassee, Florida 32303
Findings Of Fact Petitioners, Willie Towns and John H. Smith, are both incarcerated in the State of Florida at the Lawtey Correctional Institution. On October 12, 1984, Respondent, DOC, caused to be published in the Florida Administrative Weekly, Vol 10, No 41, a copy of Emergency Rule 33ER84-6, dealing with the freezing of incentive gain time. This emergency rule was shown to have become effective when filed with the Florida Department of State on October 4, 1984. The implementation of this rule as an emergency rule was based on a finding by Respondent that there was an immediate danger to the public health, safety, or welfare requiring it. The DOC's rationale for this finding was that a need existed for Respondent to have a definite release date set to arrange for notification to law enforcement officials from other jurisdictions who had filed detainers against inmates of their impending release sufficiently in advance of that release date so that those agencies could make arrangements for assuming custody without permitting the inmates to be released into society creating a danger to the public. The rule, in summary, provides that an inmate's release date will be frozen on the 12th day of the month preceding the month of his release and that the inmate will not benefit during the frozen period from any further incentive gain time adjustments to his release date. Emergency Rule 33ER84-6 is identical in language and effect to Emergency Rule 33ER84-5 which was published in the Florida Administrative Weekly, Vol 10, No 28, on July 13, 1984, which became effective on July 2, 1984, and which expired on September 29, 1984, after 90 days. On or about December 6, 1984, Petitioners filed the Petition for Permanent Injunction to Stop the Freezing of Earned Gain Time. The Petition has five major thrusts. The first is that since the Respondent showed no need for an emergency rule, the rule implemented in that form is invalid. The second is that both this rule and its identical predecessor violate both State and Federal ex post facto principles. The third is that both the instant rule and its predecessor are being unlawfully enforced at LCI. The fourth is that in the promulgation of a rule such as this, the agency is required to publish an economic impact statement which was not done here. This particular issue was resolved adversely to the Petitioners at the telephone conference motion hearing held on December 18, 1984. The fifth is that the instant rule is an unlawful extension of its identical predecessor and its promulgation is an unlawful attempt to circumvent the provisions of Section 120.54 (9)(e), Florida Statutes (1983). Rule 33ER84-6, which had an effective date of October 4, 1984, expired on January 2, 1985. Petitioner Towns' tentative release date is March 26, 1986. Petitioner Smith's tentative release date is March 6, 1986. Neither Petitioner would be affected by the emergency rule since their incentive gain time would not be subject to being frozen until sometime in February, 1986.
The Issue The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 4, 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Mark J. Atherden, contends that Respondent, Department of Corrections (Department), unlawfully terminated him from employment on account of a disability. After serving with the United States Marine Corps between 1957 and 1960, Petitioner received a ten percent disability rating by the federal government for a military service-connected disability, asthma. The Department denies the charge of discrimination and contends instead that Petitioner does not suffer from a disability, and even if he did, it terminated him, a probationary employee, for a lawful reason, insubordination. Petitioner first applied for employment with the Department in August 1995 as a correctional officer (CO). He worked from January until April 1996 when he was terminated because he did not successfully complete his certification training. After obtaining his certification, on October 9, 1996, Petitioner reapplied for employment as a CO. A part of the application is the Willingness Questionnaire, which specifically asks if the applicant is willing to work a double shift and overtime, if necessary. Working overtime and second shifts is a job requirement imposed on all correctional officers. If an applicant has a medical condition which would prevent him or her from working a double shift or overtime, the appropriate response would be "No," followed by a brief explanation. In Petitioner's case, he responded with a "Yes," which meant he was willing to work double shifts and overtime, if required by his employer. In response to a question on the Medical History Questionnaire of whether he had ever received, or applied for, a disability pension, Petitioner answered "Veteran - 10%." To support that answer, he attached to his application a letter dated June 10, 1993, from the federal Department of Veterans Affairs reflecting that he was "in receipt of disability compensation on acct. of service-connected disability rated at less than 30 percent." On the same application, Petitioner indicated that he had been diagnosed with asthma, in connection with military service. He added, however, that he was not then under a doctor's care for any condition, was not taking any medications, and had not been given a physical examination within the last three years. He also indicated that there was nothing "important in [his] medical history" that should be brought to his prospective employer's attention. Finally, he did not identify, much less document, any work restrictions imposed by a physician. Therefore, based on the foregoing responses, and even assuming Petitioner had a disability, the Department had no actual or constructive notice that Petitioner was then suffering from a disability that substantially limited him in a major life activity, or that he did not enjoy the full and normal use of his physical facilities in some measure. When Petitioner was accepted for a position, he was given a statement prepared by the Equal Employment Opportunity Commission which explained his right to seek an accommodation for a disability and a form by which an accommodation could be sought. Petitioner did not avail himself of this right. Importantly, Petitioner acknowledged at hearing that he did not need an "up-front" accommodation when he applied for employment. Petitioner was employed as a CO in the Lake Correctional Institution (LCI) effective December 6, 1996. He was assigned to work the 4 pm - 12 midnight shift (shift 3) in Dormitory F. Under career service rules, he was considered a probationary employee for at least the first six months. This meant he could be terminated during his probationary period without the right to an appeal under career service rules. Although the parties disagree in some respects about the events which occurred on the evening of January 6, 1997, the following facts are found to be the most credible. Just before midnight on January 6, 1997, Captain M. Walter, the shift commander for the midnight to 8 am shift (shift 1), discovered that he was one man short in establishing his "critical complement" of 25 COs for shift 1. Since it is essential that the critical complement be met, Walter began calling COs then completing shift 3 to ask for a volunteer to work the next shift. This was consistent with in-house policy that volunteers be sought before the shift commander order someone to involuntarily stay on duty. When Petitioner was asked by Walter if he would work the next shift, Petitioner responded, "No, I cannot." When Walter could not get a volunteer, he telephoned the CO with the least seniority, who happened to be Petitioner. This time, he ordered Petitioner to stay for at least six hours on the next shift. Petitioner responded, "I can't." Walter asked why, and Petitioner responded, "I don't have a reason, I'm just not staying." Walter then instructed Petitioner to prepare an Incident Report (IR), which is required anytime an unusual event occurs, and to turn it into the control room. By refusing to work a second shift that evening, Petitioner could not perform an essential function of his job. After leaving his shift at midnight, Petitioner went to the control room and obtained an IR form. Although Walter was still present in the room, he was very busy changing shift personnel. Consequently, Petitioner did not offer an explanation for his refusing to work a second shift. Walter established, however, that had Petitioner (or any other CO) desired to speak with him about a matter such as this, he would have told him to wait a few minutes until the new personnel were on duty, and he would then discuss any problems. Although Petitioner contended that Walter erred by not asking him at that time why he declined to work a second shift, Walter had no reason to make further inquiry with Petitioner since Petitioner had already told him that he didn't "have a reason." Walter accordingly construed Petitioner's refusal as insubordination. Walter did not know that Petitioner had asthma, or that he was contending that a disability prevented him from working a double shift. On January 7, 1997, Walter prepared the following IR for his supervisor, which corroborates his account of events given orally at hearing: On 1/7/97 at approximately 12:00mn, the first shift was 1 officer short of critical complement. I polled the previous shift for overtime, but no officer volunteered. At approximately 12:02 a.m., I ordered CO M. Atherden to stay for shift #1 for at least 6 hours to maintain critical complement. CO Atherden flatly refused to stay. I asked him for his reason and he stated "I don't have a reason, I'm just not staying." Walter added that: . . . Atherden was informed to write an incident report concerning his refusal and to report to the Chief Correctional Officer on 1/8/97 . . . In Atherden's IR also prepared on January 7, 1997, he stated that: Captain Walter contact[ed] CO Atherden by phone 1/6/97, 11:55 p.m. ordering me to work 1st shift (12-8). I refused by saying I could not. My refusal was based on; [sic] I cannot work (2) shifts with a 14-16 hours duration. Working this length of time will aggrevate my asthma and higher my blood pressure which will deteriorate my health (short/long term). After receiving both IRs, Colonel James Tridico, the chief correctional officer at LCI, met with Petitioner on January 17, 1997. During their ten-minute meeting, Tridico asked Petitioner why he wouldn't work a second shift even though he had agreed to do so in his Willingness Questionnaire. Petitioner responded that he was willing to work two extra hours, if needed, and an extra shift every fifth day when he would be off duty the following day. He stated, however, that he could not work sixteen consecutive hours, from 4 pm to 8 am, and then return eight hours later for his regular 4 pm shift, for fear this would trigger an asmtha attack. He also denied stating to Walter that he "did not have a reason" for failing to stay. After meeting with Petitioner, Tridico prepared an intraoffice memorandum to the superintendent, Don M. Dean, in which he recommended that Petitioner be terminated for insubordination, since he had previously signed a statement expressing his willingness to work double shifts and overtime. The fact that Petitioner may or may not have had a disability played no role in his decision. Superintendent Dean accepted Tridico's recommendation, and Petitioner was terminated effective January 24, 1997. Like Tridico, Dean's decision was based on insubordination by the employee, and not on account of any disability that Petitioner may have had. Between December 6, 1996, and January 7, 1997, Atherden had no discernible breathing problems; he had not suffered an asthma attack while on duty; he had not missed work because of asthma; and he did not require an inhaler. He runs two miles every other day and exercises regularly. In fact, asthmatic conditions are not unusual among LCI officers. Other than Petitioner's own testimony that he "knew" he would suffer an asthma attack if he worked a double shift, there was no evidence, medical or otherwise, to support a finding that, because of his asthma, Petitioner could not work a double shift, or that he was different from other COs who also had asthmatic conditions. At hearing, Petitioner explained that when Walter first asked him, and later ordered him, to work the second shift, he did not think it "appropriate" to discuss his medical situation in the presence of three or four other COs. Therefore, he never mentioned the fact that he had asthma to Walter. For the reasons given in Finding of Fact 10, he also failed to give an explanation to Walter when visiting the control room that same evening to fill out an IR. Although not pled in his Charge of Discrimination, at hearing Petitioner requested reinstatement, relocation expenses if required to move, back payment of lost wages, payment for health, life insurance, and retirement benefits, payment of back sick days, vacation days, and holidays, expenses incurred in searching for other employment, reimbursement for having to use savings after being terminated, and damages for "pain and anguish." These claims total $96,469.00 and are summarized in Petitioner's Exhibit 2.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, Petitioner's Charge of Discrimination. DONE AND ENTERED this 8th day of July, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1998. COPIES FURNISHED: Mark J. Atherton Post Office Box 1477 Mount Dora, Florida 32756 J. Yvette Pressley, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact At all times material to the issue of abandonment in these proceedings, Petitioner Bynoe was a Career Service Employee, and was employed by the Department of Corrections at Hendry Correctional Institution in Immokalee, Florida, as a Correctional Officer I. In February 1989, the Petitioner submitted a written request for annual leave from June 9, 1989 to June 17, 1989. The leave was approved by the Petitioner's supervisor, Captain Jody Davis. June 6, 1989, Petitioner Bynoe was informed by Captain Davis that he did not have enough hours of annual leave accrued to cover the vacation period which was to begin on June 9, 1989. The prior written approval to the Petitioner for annual leave was revoked as the previously anticipated hours of accrued annual leave did not exist. The Petitioner had only eight hours of annual leave accrued at the time the approval of annual leave was revoked by Captain Davis. In an attempt to accommodate the Petitioner, who had already scheduled vacation plans, Captain Davis told him that the work schedule could be rearranged to allow Petitioner Bynoe to have five days off in a row from June 7, 1989 through June 11, 1989. This work schedule would give Petitioner Bynoe his regular days off of June 7th and 8th. His regularly scheduled days off of June 14th and 15th could be moved to June 9th and 10th, and the eight hours of annual leave available to Petitioner could be used on June 11th. Thus, Petitioner could have time off from work, and Captain Davis could act within his supervisory authority with regard to his approval of leave requests from the Petitioner, who was under his direct supervision. During the discussion between the Petitioner and Captain Davis, the Petitioner requested that he be allowed to take the full vacation period previously scheduled, and that the time from June 12, 1989 through June 17, 1989, be granted as leave without pay. Captain Davis informed Petitioner Bynoe that he did not have the authority to approve such a request, and that such an approval would have to come from someone higher in command. Although the two men ended their conversation with the clear intention to discuss the matter later during the work period on June 6, 1989, they were unable to discuss the matter again on that date. After the Petitioner completed work on June 6, 1989, he left for South Carolina as he had originally planned. On June 9, 1989, Petitioner telephoned Colonel Page at Hendry Correctional Institute. As Colonel Page was on leave, the call was transferred to the personnel manager, Mr. Dick Vollmer. During the conversation, the decision made by Captain Davis to revoke the Petitioner's leave from June 12, 1989 to June 17, 1989, was discussed. Captain Davis' decision was not modified by Mr. Vollmer or anyone else at the correctional institution. The Petitioner did not return to work on June 12, 1989. No additional contact with the institution was initiated by Petitioner until June 19, 1989, when he informed Captain Davis that he was to begin jury duty on that date. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989. Captain Davis expected the Petitioner back to work on June 12, 1989. Petitioner Bynoe was scheduled to work from June 12, 1989 to June 20, 1989. The Petitioner did not report to work nor did he contact anyone at the institution until June 19, 1989, when he began jury duty on that date. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989.
Recommendation Based upon the evidence, it is RECOMMENDED: That the Secretary of the Department of Administration issue a Final Order finding that Petitioner Bynoe abandoned his position and resigned from the Career Service System. DONE and ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of February, 1990. APPENDIX TO RECOMMENDED Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #2. Rejected. Contrary to fact. Accept that Captain Davis spoke with Petitioner. See HO #3 - HO #6. Reject the finding that Captain Davis had not informed the Petitioner that his previously approved leave request had been rescinded. Contrary to fact. See HO #3. Accepted. See HO #6. Accepted. See HO #7 and HO #8. Rejected. Contrary to fact. See HO #8. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. Rejected. This testimony not believed by the Hearing Officer. Accepted. Accepted. Rejected. Irrelevant. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. 19.-27. Rejected. Immaterial to these proceedings. Also, Daugherty's testimony was not believed by the Hearing Officer, and was rejected in full. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. Accepted. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #3. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #8. Rejected. Irrelevant. Accepted. Accepted. See HO #9. Accepted. See HO #9. Accepted. See preliminary statement. COPIES FURNISHED: Joan Stewart, Esquire Florida Police Benevolent Association, Inc. Post Office Box 11239 Tallahassee, Florida 32302 Perri M. King, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
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
The Issue On September 22, 1994, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Bureau of Timeshare issued a notice to show cause to Erni Hirsch alleging that Ms. Hirsch violated various provisions of Chapter 721, Florida Statutes, regarding vacation and timeshare plans. Specifically, the agency charged that Ms. Hirsch sold multiple timeshare periods as a "successor developer" or "concurrent developer" without providing required notices and filings. The issue is whether the violations occurred and, if so, what penalties and remedial action are appropriate.
Findings Of Fact Erni Hirsch resides in Hollywood, Florida. She has a bachelor's degree in elementary education and a master's degree in public administration, and she has completed a doctorate program in public administration. Prior to 1973, Ms. Hirsch was an elementary school teacher and worked on curriculum for Dade County public schools. From 1973 through 1993, she worked for the Seminole Tribe of Florida setting up adult schools on the reservations, doing grant development and then acting as business manager for the tribe. She was employed full-time by the tribe and worked sometimes sixty to seventy hours a week. She now considers herself retired. Ms. Hirsch is married and has three grown children. The family used to go camping, but in the mid-1980's Ms. Hirsch began purchasing timeshare periods for the family's vacations. She initially purchased a timeshare period in the Hollywood Beach Tower, where she lives, and used it for a beach club and to trade for timeshare periods elsewhere. Ms. Hirsch continued purchasing timeshare periods, upgrading them into better exchange groups. She purchased timeshare periods in other plans, in other cities in Florida and sold them or she traded them in exchange clubs for her personal use and that of her family and friends. While she initially sold timeshares to family and friends, she eventually started advertising timeshare periods in the newspaper, giving her name and home telephone number to contact. In response to inquiries, she sent lists of the various timeshare periods she owned; she also sent letters or information sheets explaining the concept of timesharing and the exchange programs. When she had purchasers, she suggested they get representation by an attorney or title company. She did not receive escrow deposits and did not maintain an escrow account. Any escrow money was held by the attorney or title company. In some cases when purchasers changed their minds before closing, Ms. Hirsch let them have their money back. She never received complaints from purchasers and does not know whether the Department of Business and Professional Regulation (agency) received complaints. As stipulated by Ms. Hirsch, she owned and transferred title from herself to others in thirty-eight timeshare periods in twenty-one timeshare plans, as follows: HOLLYWOOD BEACH HOTEL AND TOWER Project No. PRXI000584: M. Racoma and Helen T. Racoma, No. 305, Wk 25, Deed Recorded 10/11/91 Rolando V. and Concepcion Barcenilla, No. 305, Wk 26, Deed Recorded 10/11/91 HOLLYWOOD BEACH HOTEL Project No. PRXI000186 Jack Sweetser and Virginia Sweetser, No. 604, Wk 22, Deed Recorded 10/4/91 Michael Mikola, No. 603, Wk 27, Deed Recorded 10/23/91 WESTGATE VACATION VILLAS, PHASE I Project No. PRTI000603 Gregory M. Makozy and Maria Makozy, No. B-04, Wk 45, Deed Recorded 9/21/93 Danielle Hirsch, No. A-08, Wk 24, Deed Recorded 2/23/94 WESTGATE VACATION VILLAS, PHASE III Project No. PRTI000608 Paul A. Pritchard and Faith M. Pritchard, No. L9, Wk 13, Deed Recorded 7/23/93 WESTGATE VACATION VILLAS, PHASE IV Project No. PRTI000609 Leonard A. and Louise E. Bussiere, No. K-09, Wk 6, Deed Recorded 4/7/92 WESTGATE VACATION VILLAS, PHASE V Project No. PRTI000610 Sanford Hirsch, No. J-09, Wk 36, Deed Recorded 4/13/94 Ronald T. and Helen D. Reichenbaum, No. G-06, Wk 51, Deed Recorded 11/19/92 WESTGATE VACATION VILLAS, PHASE VII Project No. PRTI000612 Roger L. Deskins, No. P-05, Wk 7, Deed Recorded 4/22/93 Anthony B. and Valerie A. Leatheart, No. X-10, Wk 52, Deed Recorded 2/13/92 WESTGATE VACATION VILLAS, PHASE IX Project No. PRTI000565 Richard D. Penner and Lorna R. Penner, No. U-10, Wk 21, Deed Recorded 3/25/93 Danielle Hirsch, No. V-05, Wk 31, Deed Recorded 2/23/94 Leo and Moreen T. Blanchette, No. T-08, Wk 39, Deed Recorded 9/24/92 WESTGATE VACATION VILLAS, PHASE XI Project No. PRTI000651 Richard and Eileen Wells, No. Q-11, Wk 22, Deed Recorded 1/22/92 RESORT WORLD OF ORLANDO, PHASE I Project No. PRXMI00376 Mitchel Vogel and Bonnie Vogel, No. B-105, Wk 45, Deed Recorded 1/8/93 Delores Miller, No. 212, Wk 46, Deed Recorded 12/23/92 R. P. and M. O. Gardiner, No. B-107, Wk 44, Deed Recorded 7/27/92 R. P. and M. O. Gardiner, No. A-115, Wk 43, Deed Recorded 7/27/92 Annette Carmona, No. C-211, Wk 33, Deed Recorded 9/23/92 Philip J. and Shelagh M. Price, No. 214, Wk 14, Deed Recorded 9/23/92 RESORT WORLD OF ORLANDO, PHASE II Project No. PRXMI00620 Phase II (A) Peter J. and Madeline A. Nolan, No. A-217, Wk 29, Deed Recorded 9/22/92 Phase II (B) George P. and Karen L. Wong, Trustees, No. E-222, Wk 52, Deed Recorded 7/92 Phase II (C) Gregory P. and Carol Gordon, No. C-234, Wk 23, Deed Recorded 8/7/91 Phase II (G) Lillie R. Long, No. 274, Wk 41, Deed Recorded 11/5/92 THE OAKS AT RESORT WORLD, PHASE IV Anthony M. and Debra A. Kozar, No. 425, Wk 15, Deed Recorded 12/2/92 THE SPAS AT RESORT WORLD, PHASE V Mark J. Wilma, Anna E. Wilma, William K. Zelenc and Nicolett J. Zelenc, No. 527, Wk 11, Deed Recorded 6/24/93 CLUB SEVILLA Horace Curry and Sandra E. Curry, No. 321, Wk 44, Deed Recorded 9/20/91 HIGH POINT WORLD RESORT, PHASE I Marc Van Hove, No. 105, Wk 41, Deed Recorded 3/12/92 VISTANA FALLS CONDOMINIUM Robert L. and Hein T. Hopkins, No. 220, Wk 24, Deed Recorded 11/11/93 John T. and Deborah L. Ryan, No. 208, Wk 36, Deed Recorded 7/13/93 VISTANA CONDOMINIUM Project No. PRXPI00605 Prabhas and Madulika Kejriwal, No A-12, Wk 27, Deed Recorded 5/21/93 ORANGE LAKE COUNTRY CLUB VILLAS Project No. PRXPI00325 James O. and Hildegard J.L. Buss, No. 225, Wk 51, Deed Recorded 9/7/93 CLUB ORLANDO VACATION RESORT I Project No. PRTI000652 Mitchel and Bonnie Vogel, No. 144, Wk 18 (even years), Deed Recorded 1/8/93 SAND AND SURF, A CONDOMINIUM Project No. PRXMI00398 Clearwater Properties, Inc., No. 255, Wks 51/52, Deed Recorded 8/3/90 SEVEN SEAS, A CONDOMINIUM Project No. PRXI000431 Bing S. Laj, No. 310, Wk 51, Deed Recorded 10/6/89 Barbara Uzmack, No. 108, Wk 32, Deed Recorded 8/29/88 Each of the timeshare plans is located in the State of Florida. Except for the two grantees named Hirsch, there is no evidence of kinship between Ms. Hirsch and the purchasers. At all times material to the allegations of the order to show cause, each of the timeshare plans was comprised of more than seven timeshare periods over a period of at least three years. The initial purchase price was $1,000 or more in thirty-four of the timeshare periods sold by Ms. Hirsch; in four periods the purchase price was less than $1,000. For each timeshare period the purchaser from Ms. Hirsch was contractually and statutorily obligated to pay a recurring maintenance fee. Ms. Hirsch's income from her sales of timeshare periods was: YEAR TIMESHARE GROSS INCOME TIMESHARE NET INCOME 1995 $ 7,000 ($2,000) 1994 $ 70,000 ($3,000) 1993 $ 75,000 $3,893.02 1992 $109,000 $5,981.12 1991 $ 25,000 $ 500.00 Ms. Hirsch stipulates that, as charged in the notice to show cause with respect to the timeshare periods she offered and sold, she: did not file any public offering statements with the Petitioner for review and approval with respect to the timeshare periods and timeshare plans prior to offering them to the public; did not provide her timeshare purchasers with a public offering statement that had been approved by the Petitioner with respect to the timeshare periods and timeshare plans prior to closing on sales; did not establish an escrow account with an approved escrow agent as to each timeshare plan; did not at any time place all funds or other property received from or on behalf of purchasers into an escrow account with respect to the timeshare plans; closed on sales of the timeshare periods prior to providing her timeshare purchasers with an approved public offering statement; and did not provide Petitioner with the names and addresses of the persons to whom she had sold timeshare periods. During the relevant period Ms. Hirsch did not incorporate as a business, maintain an office outside of her home, maintain a business telephone, or otherwise operate in other than her own individual capacity. Where she lives she is not permitted to operate an office out of her home. The agency began investigating Ms. Hirsch's timeshare sales activities upon complaint from Michael Lucas of American Timeshare Resales, in the Orlando/Kissimmee area. Sometime in 1993, Ms. Hirsch received a notice of the agency's investigation. After being informed of the agency's concern, Ms. Hirsch contacted someone in Orlando with the Department of Business and Professional Regulation's Division of Real Estate. From that contact she understood that she was not subject to regulation as long as she was selling timeshare periods that she owned herself. She also contacted an attorney whom she understood specialized in condominium and timeshare law. She received an opinion letter from another attorney in the same firm, Becker and Poliakoff, P.A. The letter stated that arguably she was not a successor or concurrent developer because she purchased her timeshare periods from individuals who were not themselves developers. The letter concluded there were no cases directly on point and the agency might claim that her sales in the ordinary course of business qualified her as a developer. (Respondent's exhibit no. 2) When the agency did, indeed, pursue its administrative enforcement action, Ms. Hirsch ceased buying and selling timeshare periods. At the time of hearing she had two left, which she used, and she disavowed any further interest in acquiring more. Considering the totality of the facts and circumstances, it is evident that what started as a family vacation program developed into a business pursuit. It is impossible to ignore the volume of the timeshare periods being sold, the active advertising campaign and the gross income being generated (over $100,000 in one year, 1992). The fact that there were net losses or very small net gains only establishes that large sums were being spent in the enterprise. The evidence belies any claim that all of the timeshare periods were acquired by Ms. Hirsch for her own occupancy, even if the trades for other periods in other plans are considered. Ms. Hirsch did not intend to commit any violations and she did not intend to deprive her purchasers of their statutory rights. As a layperson, albeit well-educated and experienced in financial matters, she obviously never considered herself a "developer" of any sort; she relied on advice of counsel in that regard as well. It is evident that Ms. Hirsch unwittingly slipped within the regulatory reach of timeshare law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation enter a final order finding that Ms. Hirsch violated Sections 721.07, 721.08 and 721.10, Florida Statutes, and ordering that she cease and desist. DONE and ENTERED this 21st day of February, 1996, in Tallahassee, Florida. MARY CLARK, 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 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0951 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Adopted in substance in paragraph 5. 4.-5. Adopted in paragraph 6. 6. Adopted in paragraph 7. 7.-10. Adopted in paragraph 8. Accepted as a conclusion of law. Adopted in paragraph 9. Accepted, but unnecessary. The figures speak for themselves. 14.-16. Adopted in substance in paragraphs 5 and 15. 17.-18. Rejected as argument, but incorporated in part in conclusions of law. Rejected. Respondent's testimony is credited, but only to show that she made some attempts to determine her legal obligations. It is accepted that the Division of Real Estate does not regulate timeshares; it does, however, regulate persons who sell or offer to sell real property. Adopted in paragraph 13. 21.-23. Adopted in part in paragraph 13; otherwise rejected as argument or unnecessary. 24. Adopted in substance in paragraph 15. 25.-26. Rejected as unnecessary. Adopted in paragraph 10. Adopted in paragraph 5. Respondent's Proposed Findings of Fact. 1. Adopted in substance in paragraph 2. 2.-3. Adopted in paragraph 3. Rejected as unsubstantiated by the evidence (as to whether she contacted any agency prior to reselling any timeshare period). Accepted that she understood that to be the agency's response. See paragraph 13. 6.-10. Adopted in substance in paragraph 5. 11. Adopted in substance in paragraph 11. 12.-14. Rejected as unnecessary. Adopted in paragraph 12. Rejected as unnecessary. Adopted in paragraph 12, except that she received notice sometime in 1993. 18.-19. Adopted in part in paragraph 13. The opinion letter was more equivocal than characterized in this proposed finding. Rejected as contrary to the weight of evidence. Respondent did not contact counsel until after she was contacted by the agency. Rejected as contrary to the evidence. The purchase price, only, was less than $1,000. 22.-23. Rejected as contrary to the evidence. 24.-25. Addressed in conclusion of law no. 26. COPIES FURNISHED: Laura L. Glenn, Senior Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Tracy Hirsch, Esquire John Militana, Esquire Militana, Militana and Militana, P.A. 8801 Biscayne Boulevard, Suite 101 Miami Shores, Florida 33138 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 W. James Norred, Acting Director Department of Business and Professional Regulation Division of Florida Land Sales, Condominiums and Mobile Homes Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Notice of Specific Charges filed against him, and, if so, whether he should be terminated from his employment with Petitioner.
Findings Of Fact Respondent was employed by Petitioner in 1982. From 1984 to 1993, he was employed as a head custodian. He was demoted from that position to the position of custodian in 1994. Thereafter, he was employed by Petitioner as a custodian assigned to Lindsey Hopkins Technical Education Center. At all times material hereto, John Leyva was the principal of Lindsey Hopkins. Leyva delegated many of his responsibilities as principal, including his supervision over the custodial staff, to other administrative personnel. Prior to his assignment to Lindsey Hopkins, Respondent was the subject of progressive discipline, consisting of formal and informal conferences, counseling sessions, and reprimands. At the beginning of Respondent's employment at Lindsey Hopkins, Respondent was assigned to the third shift, from 11:00 p.m. to 7:00 a.m. During the 1994-95 school year, Respondent was frequently absent, and he failed to follow appropriate notification procedures with respect to his absences and his whereabouts during work hours. From July 1994 through July 1995, Respondent was absent a total of 76 days, of which 7 1/2 days were without authorization. From June 2, 1995, through June 6, 1995, Respondent was absent without authorization for three consecutive work days. Respondent's absences had an adverse impact on his work site inasmuch as his absences created a morale problem among staff and resulted in areas within Lindsey Hopkins not being cleaned properly. Eventually, due to Respondent's attendance problems, Respondent was moved from the third shift to the second shift, from 3:00 p.m. to 11:00 p.m. During this time Respondent was to report to James Parker, the on-site vice-principal. As a custodian, Respondent was also supervised by Dennis Caldwell, Linda Morris, and Lawrence King. Although Caldwell was not present during the major portion of Respondent's second shift, since Caldwell's regular hours ended at 4:00 p.m., there were many times when Caldwell went to the work site in the evening to spot-check his employees and address different problems in the custodial area. On March 23, 1995, Respondent was issued a memorandum that delineated his absences during the school year and which provided numerous directives to Respondent regarding the appropriate procedures he was to follow if he were going to be absent in the future. He was directed to communicate his intent to be absent directly to his supervisors and to provide documentation from a treating physician for his absences due to illness. He was also directed to comply with Petitioner's leave procedures. Respondent was also provided with notice of the adverse impact that his absences had on his work environment. He was offered assistance to achieve regular attendance. He was advised that continued non-compliance with attendance procedures and directives would be considered a violation of his professional responsibilities. On May 17, 1995, Respondent was not in his assigned work area, and he had failed to notify anyone of his whereabouts. Further, he refused to discuss his absence with Caldwell after being directed to speak with Caldwell. On May 26, 1995, Respondent was involved in a physical altercation with a woman on the premises of Lindsey Hopkins during Respondent's working hours. During the course of this incident, King noticed that Respondent was staggering and that he had alcohol permeating from his breath. King concluded that Respondent was under the influence of alcohol and sent Respondent home. On May 30, 1995, Respondent was directed to attend a conference-for-the-record on June 7, 1995, to address his conduct. Respondent failed to attend the conference-for-the- record. On June 8, the conference was re-scheduled for June 14, but Respondent did not attend that conference-for-the-record either. Respondent was administratively referred to Petitioner's Employee Assistance Program in an effort to provide him with assistance in eliminating his continuing pattern of unauthorized absences and performance-related problems. On March 19, 1996, despite directives from Caldwell regarding Respondent's work responsibilities, Respondent failed to complete his daily work assignments with respect to the lockers within his assigned area. In a written warning, Respondent was notified that his continued non-performance would result in further disciplinary action. On July 30, 1996, Respondent again failed to carry out his job responsibilities. He failed to empty trash cans and sweep or mop the corridors within his assigned area. In a written warning, Respondent was again directed to complete his daily work assignments. From July 1995 through July 1996, Respondent was absent for 45 days, 7 1/2 of which were without authorization. During the period from July 11, 1995, through July 18, 1995, Respondent was absent without authorization for at least three consecutive work days. On September 18, 1996, Tom Albano saw Respondent sleeping on the floor in the child care room during his work hours. The child care room is not an authorized break area. Further, at the time he was caught sleeping, Respondent was not on an authorized break. Albano told Respondent that his conduct was improper and that there were other things he could be doing rather than sleeping. On October 1, 1996, Parker found Respondent sleeping on the couch in the child care room at a time when Respondent was not on an authorized break. Parker prepared a memorandum addressing the sleeping incidents to give to Respondent. The memorandum documented the appropriate procedures concerning Respondent's work schedule and break areas. It notified Respondent that his actions adversely impacted the effective operation of the work site. It provided directives to Respondent and advised him that non-compliance with the directives would be considered a violation of his employment responsibilities. In order to give Respondent the memorandum, Parker called Respondent into his office to meet with him and Albano on October 2. During that meeting Respondent reacted to Parker in a loud, irate, aggressive, hostile, and threatening manner. He called Parker a racist and a bigot and told Parker that Parker must be on drugs. Parker became concerned for his own safety. Parker and Albano provided written summaries of the meeting to Principal Leyva. Leyva directed Respondent to attend a conference-for- the-record on October 7, 1996. That conference was canceled by Leyva, with the consent of Respondent's union, due to an injury Leyva suffered. The conference-for-the-record was re-scheduled for the following day, but Respondent failed to attend. The conference was re-scheduled for October 15 but was postponed at the request of Respondent's union and re-scheduled for October 22. Respondent failed to appear for the October 22 conference and was absent from his work site October 21-28, 1996. The school administrators subsequently learned that Respondent was incarcerated for domestic violence at the time of the October 22 conference and during the period of October 21-28. It is Petitioner's policy that absences due to incarceration are documented as unauthorized leave without pay. As a result, Respondent's absences from October 21 through October 28 were documented as unauthorized leave without pay. Respondent returned to Lindsey Hopkins on October 30. Parker requested that Respondent come to Parker's office so they could discuss Respondent's unauthorized leave status and so that Parker could direct Respondent to report to the Office of Professional Standards (hereinafter "OPS"). Due to his previous meeting with Respondent and out of concern for his own safety, Parker had two other employees present in his office awaiting Respondent's arrival. When he arrived at Parker's office, Respondent had a strong odor of alcohol permeating from his breath. He also appeared to be stumbling, his eyes were red and bloodshot, and he appeared angry, upset, and agitated. Therefore, Parker directed Respondent to report to OPS for re-admittance to Lindsey Hopkins and had Respondent escorted off the school campus. Respondent failed to follow Parker's directive to report to OPS before returning to Lindsey Hopkins. Instead, Respondent reported to Lindsey Hopkins on the following day, October 31, 1996. When Leyva was advised that Respondent was at Lindsey Hopkins, he directed that Respondent come to Leyva's office. Two other employees were present in Leyva's office. When Respondent came to Leyva's office, those present noticed that Respondent was swaying and mumbling, his speech was slurred, and he smelled of alcohol. Leyva contacted Dr. Thomasina O'Donnell in the OPS for further direction, and she advised him to ask Respondent if he would consent to take a drug/alcohol test based upon reasonable suspicion. Respondent agreed to take the test and was escorted to the testing facility. His breath alcohol test revealed the presence of alcohol in Respondent's system. The following day Leyva administratively referred Respondent to OPS, and OPS thereafter sent Respondent a letter requesting that he contact the office to schedule a conference- for-the-record. OPS convened Respondent's conference-for-the-record on November 5, 1996. Respondent's aggressive and violent behavior at the work site was discussed, as was his October 31 breath alcohol test confirming the presence of alcohol in his system and, thus, his intoxication at the work site. His attendance and future employment status were also discussed. Respondent was directed to provide OPS with official documentation by November 12, 1996, showing his enrollment and participation in an alcohol recovery program. He was also advised of his right to clarify, explain, and/or respond to any information recorded in the conference summary. Respondent was again referred to the Employee Assistance Program and was administratively re-assigned to another work location pending formal notification of any disciplinary action. Respondent never provided any documentation to OPS to clarify, explain, respond to, or refute any of the allegations made against him during the conference held on November 5. Likewise, Respondent never complied with the directive given him during the November 5 conference that he provide OPS with documentation of his enrollment and participation in an alcohol recovery program. From November 1995 through November 1996, Respondent was absent a total of 37 days, 12 of which were without authorization. From July 1996, the commencement of the contractual school year, to February 5, 1997, the date on which Petitioner suspended Respondent and initiated these dismissal proceedings, Respondent had already accrued a total of 24 days of absences, 12 of which were without authorization. From October 21, 1996, through November 5, 1996, Respondent was absent without authorization for at least three consecutive work days.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Amended Notice of Specific Charges filed in this cause and dismissing Respondent from his employment with Petitioner effective February 5, 1997. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Heidi Shulman-Pereira, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132-1308 Donald Appignani, Esquire Phillips, Levy & Rind, P.A. 3001 Ponce de Leon Boulevard, Suite 214 Coral Gables, Florida 33134 Roger C. Cuevas, Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132-1308
