The Issue Whether the Respondent discriminated against the Petitioner on the basis of disability, in violation of the Florida Civil Rights Act of 1992, Section 760.10 et seq., Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rivero was first employed by Miami-Dade County in November 1984, apparently as a security guard with the Metropolitan Dade County Park and Recreation Department. He took a physical examination and informed the doctor conducting the examination that he suffered from cluster migraine headaches and that they occurred about six to eight times each month. Mr. Rivero subsequently left his employment with Miami-Dade County, but was re-hired in September 1986. At the time he was re-hired, he advised the recruiting officer that he suffered from migraine headaches. Mr. Rivero was employed by the Metropolitan Dade County Park and Recreation Department from September 1986 until August 10, 1999. From January 1996 through May 1999, Mr. Rivero was employed as a park ranger by the Metropolitan Dade County Park and Recreation Department, and he worked at the Metrozoo. His job responsibilities included patrolling areas of the zoo, assisting in emergencies, providing information to patrons, and providing for the safety of patrons and security for Miami-Dade County property. Because of his migraine headaches, Mr. Rivero often was absent from work, and he was advised several times by his supervisors, in documents entitled Record of Counseling, that the frequency of his absences was unacceptable. The most recent Record of Counseling submitted at the hearing by Mr. Rivero was dated November 24, 1997. On January 10, 1995, Mr. Rivero consulted with Ray Lopez, M.D., a neurologist, about his recurring migraine headaches, which had become more intense and frequent after Mr. Rivero was involved in an automobile accident in November 1994. Dr. Lopez diagnosed Mr. Rivero with migraine headaches, with post-traumatic, likely cervicogenic, intensification. Dr. Lopez treated Mr. Rivero for his headaches from January 1995 until at least December 1999. During this time, Mr. Rivero was seen by Dr. Lopez approximately twice a month. Between 1995 and 1999, Mr. Rivero's migraine headaches continued to intensify in severity and frequency. By January 1999, Mr. Rivero found it increasingly more difficult to carry out his duties as a park ranger at Miami-Dade County's Metrozoo when he had a headache, and his headaches were occurring almost daily. Between January 1999 and March 1, 1999, Dr. Lopez wrote several notes documenting Mr. Rivero's inability to work on specified days because of the headaches. Effective March 29, 1999, Mr. Rivero's work schedule was cut from 39 hours per week to 16 hours per week. Mr. Rivero had previously worked Saturdays through Wednesdays, with Thursdays and Fridays off. As a result of the change, Mr. Rivero was assigned to work on Saturdays and Sundays from 10:00 a.m. to 6:30 p.m. Mr. Rivero last reported for work at the Metrozoo on or about May 22, 1999. Mr. Rivero was unable to continue working because of the frequency and severity of his headaches. Nonetheless, Mr. Rivero called the Metrozoo office regularly between May 22, 1999, and July 18, 1999, to report that he was absent because of illness. He did not, however, have any intention of returning to work after May 1999 because he believed he could no longer perform the duties required of a park ranger.3 In July 1999, Diane Condon, the personnel manager for Metropolitan Dade County Park and Recreation Department, was told by Mr. Rivero's supervisor at the Metrozoo that Mr. Rivero had been absent for quite some time, that he had exhausted his paid leave time, and that the reason for his absences was medical. It was suggested to Ms. Congdon that Mr. Rivero be offered leave under the Family Medical Leave Act of 1993. In a letter dated July 12, 1999, from John Aligood, Chief of the Human Resources Division of the Metropolitan Dade County Park and Recreation Department, Mr. Rivero was notified that he had been preliminarily granted family/medical leave but that he would have to present a certification from his doctor within 15 days of the date he received the letter in order for his eligibility for such leave to be finally determined. Mr. Rivero was advised in the July 12, 1999, letter that continuation of the leave was contingent on receipt of medical certification from his doctor; that he must furnish the certification within 15 days after he received the letter; and that "[f]ailure to do so will result in relinquishing FMLA leave; you will then be required to return to the full duties of your job or resign, or you will be terminated for abandonment of position." The July 12, 1999, letter was sent to Mr. Rivero via certified mail, and he picked it up on July 22, 1999. Mr. Rivero contacted Ms. Congdon on July 22, 1999, and told her that Dr. Lopez was unavailable at that time to complete the medical certification. Ms. Congdon advised him that the medical certification was required for the family/medical leave to continue.4 In a letter dated August 10, 1999, which was prepared by Ms. Congdon, Mr. Rivero was advised that his employment had been terminated for abandonment of position because he had failed to provide the medical certification required for continuation of family/medical leave by July 26, 1999, which was 15 days after July 12, 1999.5 Summary The evidence presented by Mr. Rivero is insufficient to establish with the requisite degree of certainty that his employment as a park ranger with the Metropolitan Dade County Park and Recreation Department was terminated because of his medical condition. Mr. Rivero himself testified that he believed he was unable to perform the duties required by his job as of May 1999 because of his migraine headaches and that he had no intention of returning to work subsequent to May 1999. The evidence presented by Mr. Rivero is sufficient to support the inference that, prior to July 12, 1999, Mr. Rivero did not advise his supervisor at the Metrozoo or anyone else in the Metropolitan Dade County Park and Recreation Department that he did not intend to return to work after the end of May 1999. His being placed preliminarily on family/medical leave as of July 12, 1999, did not harm Mr. Rivero but, rather, resulted in his health benefits being continued until his termination on August 10, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Ruben Rivero. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 12th day of November, 2002.
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
Findings Of Fact The undersigned convened the final hearing at 9:40 a.m. on January 29, 2014, having allowed Petitioner additional time to appear. Respondent’s counsel made his appearance for the record. The undersigned informed Respondent’s counsel regarding Petitioner’s communication stating his intent not to appear. Respondent’s counsel was questioned about any acquaintance with the undersigned and confirmed that he never met nor communicated with the undersigned before the hearing on January 29, 2014.
Recommendation Based upon the fact that Petitioner failed to present any evidence in support of his Petition, it is RECOMMENDED that the Florida Commission on Human Relations enter an order dismissing this case. DONE AND ENTERED this 29th day of January, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Torri Holmes 1700 North Monroe Street, Suite 11-263 Tallahassee, Florida 32303 Elwin R. Thrasher, III, Esquire The Thrasher Law Firm 908 North Gadsden Street Tallahassee, Florida 32303
The Issue Whether the petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact 2. On April 14, 1983, petitioner received a copy of the "Employee Handbook" published by the Department of Transportation. Job abandonment is explained in the Employee Handbook as follows: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current policy. The petitioner was absent without authorized leave on April 13, 14 and 15, 1987. Petitioner did not appear for work on those days and did not call the office to explain or report his absence. On April 16, 1987, petitioner called the office at approximately 8:00 a.m. to say that no one had come to pick him up. A fellow employee sometimes furnishes petitioner's transportation. By the time petitioner called in to work, he had been absent three consecutive days without authorization. Petitioner had previously been warned about his absenteeism. On March 17, 1987, petitioner was placed on unauthorized leave without pay due to his failure to report to work or notify his supervisor. On March 18, petitioner was sent a letter notifying him that he had to report by March 24, 1987, or he would be dismissed. Thus, petitioner was well aware that he had to notify his supervisor of any absences.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Transportation and finding that Fred P. Noble abandoned his position and resigned from the Career Service. DONE AND ENTERED this 28th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 December, 1987. COPIES FURNISHED: Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450 Mr. Fred P. Noble 2516 Queen Street South St. Petersburg, Florida 33705 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis Vila, 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
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at tee hearing, the following findings of fact are made: On or about December 5, 1969, the Petitioner, Hugh G. Purkey became employed by the State of Florida, Department of Transportation. In 1984, Petitioner held the position of Engineer II, Area Engineer and was assigned to the North Dade Maintenance Yard (NDMY). In 1983, Petitioner executed a form which acknowledged he had received a complete copy of the DOT employee handbook. The acknowledgement specified that enployees are responsible to review the handbook in detail and to request any clarification needed from a supervisor. The handbook provided the following regarding job abandonnent: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. On or about October 23, 1984, Petitioner filed a request for a medical leave of absence. This request was based upon Petitioner's pulmonary disorder which prevented him from performing his duties with the NDMY. Petitioner was to receive pay based upon his accrued annual and/or sick leave through Novenber 6, 1984, thereafter, he was to be on leave without pay for a period of four months. This leave request was approved by the Petitioner's supervisor, Clive Taylor. Mr. Taylor was the only supervisor or employee at the NDMY who was authorized to grant a leave of absence for Petitioner. On January 28, 1985, an extension of Petitioner's leave of absence was granted by Mr. Taylor. This extension authorized two additional months of leave and specified that Petitioner would return to work no later than May 6, 1985. Prior to the leave of absence described above, Petitioner had performed his duties with the NDMY in an above satisfactory manner. Prior to May 6, 1985, Petitioner had complied with the rules and regulations regarding requests for leave. Petitioner did not return to work on May 6, 1985. Petitioner did not file a request for a leave extension. Mr. Taylor did not approve an extension of the leave beyond May 6, 1985. Petitioner was absent without authorized leave on May 6, 7, and 8, 1985. On May 10, 1985, Mr. Taylor executed a form entitled "Resignation and Exit Interview Form." This form provided, in part: "Mr. Purkey is not available for signature" and "Mr. Purkey is pursuing regular disability retirement." Petitioner did not execute the form but was advised of its content by telephone. Sometime prior to April 30, 1985, Petitioner had applied for disability retirement benefits. That request was filed with the Department of Administration, Division of Retirement and was denied based upon a determination that Petitioner was not totally and permanently disabled from rendering useful and efficient service. When that determination was made, Petitioner elected to file for regular retirement since he had accrued over ten years with the State. Thereafter, Petitioner received retirement benefits which were granted and paid retroactively from February 1, 1985. On July 9, 1986, Petitioner received a physician's statement which provided: It is my professional opinion that this patient may return to work requiring no strenuous physical activity providing that the patient continue on his medication and return for regular checkups in any office. Upon receipt of the physician's statement, Petitioner contacted the NDMY to request that he be allowed to return to work. Petitioner was advised that he had been terminated from employment in May, 1985, based upon his failure to return to work following his leave of absence. On July 29, 1986, Petitioner wrote to John C. Gocdnight, Assistant Secretary of Transportation, and requested Mr. Goodnight's assistance to allow Petitioner to return to DOT. That letter admitted that Petitioner knew his position had been filled but claimed he had been on leave. Petitioner maintained that he was "much too young to retire." The letter failed to mention that Petitioner had already been receiving retirement benefits. Petitioner listed his address subsequent to November, 1984, as Dunnellon, Florida. There is no record in Petitioner's personnel file which confirms DOT sent, and Petitioner received, a notice of his termination from employment in May, 1985. Petitioner did not request a hearing to review that termination until January, 1989.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Administration enter a final order finding that the Petitioner, Hugh G. Purkey, abandoned his position and resigned from the Career Service. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. The first portion of paragraph 2 is accepted; the designation of his last actual day of employment is in error and is rejected as contrary to the weight of the evidence. The date indicated, January 20, 1984, was not his last day of actual employment. According to DOT exhibit 8 (the referenced citation) that date was the last date worked. Petitioner's last date of employment would have been calculated from May 5, 1985 (the last date of his authorized leave). With regard to paragraphs 3 and 4, it is accepted that Petitioner used his accrued sick and annual leave until they were exhausted. After the paid leave was used, Petitioner applied for and received, by filing the appropriate form, an authorized leave without pay. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as comment, argument, or recitation of testimony which does not constitute a finding of specific fact. Paragraph 11 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as contrary to the weight of the credible evidence. Paragraph 14 is rejected as vague and ambiguous. It is accepted that Petitioner filed his original leave request and that Ms. Sellers assisted him. Paragraph 15 is rejected as incomplete and contrary to the weight of the evidence. Paragraph 16 is accepted to the extent that it provides that clerks would assist persons who requested such assistance. The first three sentences of paragraph 17 are accepted; the balance of the paragraph is rejected as argument or contrary to the weight of the evidence. The first sentence of paragraph 18 is accepted. The remainder of the paragraph is rejected as irrelevant or unknown. DOT did not establish that the form was sent and received by Petitioner. Paragraph 19 is accepted. Paragraph 20 is rejected as a provision of law. The parties have not disputed that the notice is required. Paragraph 21 is accepted to the extent that DOT cannot prove that such notice was provided to Petitioner. Paragraph 22 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant since Petitioner did not request that his medical leave be continued as required by the rule. Paragraph 24 is rejected as irrelevant. Further, the authorization to return was not without limitation. Paragraph 25 is rejected as contrary to the weight of the credible evidence. Paragraph 26 is rejected as irrelevant. Paragraph 27 is rejected as irrelevant. With regard to the letter to Goodnight, Petitioner admitted in that letter that he knew his position had been filled. Paragraph 28 is rejected as irrelevant. Paragraph 29 is accepted but is irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as irrelevant or not covered by the record. With regard to paragraph 32, it is accepted that Petitioner's request for disability retirement was denied and that he ultimately elected to seek early retirement; otherwise, it is rejected as hearsay uncorroborated by direct evidence. Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant or contrary to the credible evidence. Paragraph 35 is rejected as irrelevant. Paragraph 36 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 37 is rejected as irrelevant. Paragraph 38 is rejected as comment, argument, or recitation of testimony. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the credible evidence. Petitioner's section described as "Analysis" has not been considered findings of fact. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY DOT: 1. Paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 24, and 25 are accepted. Paragraph 2 is rejected as Irrelevant. Paragraph 4 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted but is unnecessary. Paragraph 23 is rejected as unsupported by the record. DOT's section described as "Analysis" has not been considered findings of fact COPIES FURNISHED: Paul H. Field WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE Grove Plaza Building, 5th Floor 2900 Middle Street Miami, Florida 33133 Charles Gardner Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Acting Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent has been a permanent full-time employee of petitioner's for over 22 years and at the time of the alleged abandonment was employed as a Engineer Technician III in petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphreys' jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and respondent, the position of survey crew chief. Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work before the end of this 6 months leave of absence without pay. The record does not reflect when respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3). Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 25, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 petitioner placed respondent on unauthorized leave of absence without pay. On September 27, 1984 petitioner was advised by Roger Tanner, respondent's probation officer, that respondent had bean incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify respondent that he had been placed on unauthorized leave without pay on September 27, 1984 until October 4, 1984 when petitioner delivered to respondent a letter from Skinner advising him that he had abandoned his position with the petitioner. Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983; (3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984. The evidence reflects that respondent had a "drinking problem" of which petitioner was aware but did very little "counseling" with respondent in this regard. On October 1, 1984 Mr. Markham, Humphreys Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that respondent's "problem would be resolved in a few days" or at least "by the weekend." Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because respondent did not have a valid driver's license. Walter H. Skinner had been delegated authority to take this type action against respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that it be found that respondent did not abandon his position and resign from the Career Service as contemplated under Rules 22A-7.1O(2)(a) and 22A-8.O2, Florida Administrative Code and that respondent be reinstated to his position of Engineer Technician III as of September 27, 1984. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Donald K. Hudson, Esquire Post Office Box 948 Jasper, Florida 32052 Daniel C. Brown Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paul A. Pappas Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel 562 Hayden Burns Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation, as alleged in the Stop-Work Order and 3rd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation (Department), is the state agency responsible for enforcing the requirement that employers in the State of Florida secure the payment of workers' compensation for their employees and corporate officers. Respondent, Po’ Boys, Inc. (Po’ Boys), is a Florida corporation engaged in business operations as a restaurant in the State of Florida from January 31, 2010, through January 30, 2013. Respondent employed more than four non-exempt employees during the periods January 31 through February 24, 2010; June 8 through September 3, 2010; and July 11, 2012, through January 30, 2013. Respondent was an "employer" as defined in chapter 440, Florida Statutes, throughout the penalty period. All of the individuals listed on the Penalty Worksheet of the 2nd Amended Order of Penalty Assessment were "employees" (as that term is defined in section 440.02(l5)(a), Florida Statutes) of Respondent during the periods of noncompliance listed on the penalty worksheets. None of the employees listed on the Penalty Worksheet can be classified as independent contractors, as defined in section 440.02, Florida Statutes. Mr. Jonas Hall is a workers’ compensation compliance officer who has worked for Petitioner for about four years. He has been involved with between 200 and 300 cases. On the morning of January 30, 2013, Mr. Hall received a “referral” report that Po’ Boys was not securing the payment of workers’ compensation for its employees. Po’ Boys operates three “traditional” restaurants in Tallahassee, which provide wait-service to their customers. Mr. Hall checked the Florida Department of State’s “Sunbiz” website, which gave him information on Po’ Boys’ legal structure, corporate officers, and principal location. He also checked workers’ compensation information for Po’ Boys, Inc., by accessing the Coverage and Compliance Automated System (CCAS) maintained by the Department. It indicated that Po’ Boys’ last coverage, which had become effective on February 6, 2012, had ended on July 11, 2012. He determined that active workers’ compensation exemptions were on file for four individuals, including Mr. Carmen Calabrese and Mr. Jon Sweede, co-owners of Po’ Boys. Information in the CCAS is submitted by insurance companies and the National Council on Compensation Insurance (NCCI). Mr. Hall drove to the College Avenue location of Po’ Boys to conduct a site visit, but it did not appear open because there were no vehicles present and the lights were off. Mr. Hall proceeded to the West Pensacola Street location. There were vehicles present and he saw an individual who appeared to be arranging chairs on the patio. Mr. Hall introduced himself and explained what he was doing there, and was then referred to Mr. Carmen Calabrese, the manager. It was about 10:00 a.m. Payroll records indicate that employees reported for work between 10:00 and 11:00 and that the restaurant was open to serve lunch and dinner. Mr. Calabrese took Mr. Hall to a “Broken Arm” poster which had a workers’ compensation sticker on the bottom. The sticker contained a workers’ compensation policy number and periods of coverage, as well as contact information for Zenith Insurance Company. Mr. Hall contacted Zenith Insurance Company, and they confirmed that coverage had not been in effect since July 11, 2012. In response to Mr. Hall’s questions, Mr. Calabrese indicated that Po’ Boys had between 50 and 60 employees working at its three locations. Mr. Calabrese told Mr. Hall that he had no knowledge that coverage was not in effect and that Mr. Hall would have to talk to Mr. Sweede, who handled the workers’ compensation for the business. Mr. Calabrese was a credible witness. Mr. Hall called Mr. Sweede, who in turn told Mr. Hall to contact Mr. Wade Shapiro, his insurance agent for providing workers’ compensation coverage. Mr. Sweede then called Mr. Shapiro as soon as he completed his telephone call with Mr. Hall. When Mr. Hall later telephoned Mr. Shapiro, Mr. Shapiro confirmed that Po’ Boys had no policy in effect, but said that he was in the process of obtaining coverage for them. Mr. Hall contacted his supervisor, Ms. Michelle Newcomer, who provided him with a Stop-Work Order Number. Mr. Hall served the Stop-Work Order and Order of Penalty Assessment on Mr. Calabrese, along with a Request for Production of Business Records for Penalty Assessment Calculation, at about 11:15 a.m. Although some records indicated that the Stop-Work Order was served at 10:30, other records and the testimony of the witnesses that it was served at 11:15 were more credible. Mr. Sweede testified that he was unaware until January 30, 2013, that his workers’ compensation coverage was not in effect. He testified that the Electronic Funds Transfer payment “came back” in July, but that he had been unaware of this. He testified, “I must not have found the paperwork, must not have looked at the envelopes, take all the heat for that in this business.” Mr. Sweede testified that he later learned Mr. Shapiro was not only aware that Po’ Boys’ coverage was not in effect, but that he had already been working to get Po’ Boys new coverage before Mr. Sweede telephoned him on January 30, 2013, all without the knowledge or authorization of Mr. Sweede. Mr. Sweede entered into an agreement to obtain workers’ compensation coverage for Po’ Boys sometime on January 30, 2013. Several documents were required, at least one with a notary’s signature. Mr. Sweede signed a letter stating that there had been no workers’ compensation claims since his previous coverage had been canceled on July 11, 2012, joined the Florida United Businesses Association (FUBA), filled out an application for coverage, and made a down payment from the Po’ Boys bank account to the (FUBA sponsored) Florida Citrus, Business, and Industries Fund. Under the terms of the agreement, coverage was made effective retroactively to 12:01 a.m. on January 30, 2013. Mr. Sweede testified that Mr. Shapiro notified him, although he could not remember exactly how, that workers’ compensation coverage was obtained for Po’ Boys at around 11:00 a.m. on January 30, 2013, about 15 minutes before the Stop-Work Order was served. Mr. Sweede’s testimony as to how he came to be satisfied that his coverage at Zenith was actually not in effect, determined how and why it had been canceled, decided to obtain insurance elsewhere, and arranged for people in at least three different locations to prepare and execute all of the required documents in approximately 45 minutes, from about 10:15 a.m. until 11:00 a.m., was unclear. The transcript reflects the following exchange: Q: Okay. So this is another –- this is something else. Obviously when Wade Shapiro came by you brought this check, right, and then he also had you sign these documents? A: I really couldn’t tell you. I couldn’t tell you which way, you know, I mean, obviously, you know, like I said, I was stressed. I got him the check. Whether he ran the check up, brought this stuff back, I probably couldn’t –- I can’t remember which chronology it was. It was, you know, a pretty stressful morning. But I know it was all fast, fortunately. Although it does not contain a jurat or notarial certificate,1/ the application for insurance does contain the signature and stamp of a notary public beneath the signatures of Mr. Sweede and Mr. Shapiro. All signatures on the document are followed by a handwritten notation of “1-30-13” in the space provided for a date. The signature and seal provide credible evidence that the document was signed sometime on January 30, 2013. Regardless of the time when coverage became effective, there is clear and convincing evidence in this case that Petitioner had no information reasonably available to it indicating that Respondent had obtained workers’ compensation coverage in the last minutes before the Stop-Work Order was issued. Respondent concedes it did not have coverage at the time of Mr. Hall’s site inspection, and does not claim that when coverage was obtained, it notified Petitioner, or even attempted to do so. Mr. Hall wrote a “Narrative” in a Department database on the afternoon of January 30, 2013, describing the events of the morning. Although Respondent demonstrated that the description was “modified” several days later on on February 5, 2013, the Department put on no evidence to explain what was modified, or why. The testimony of witnesses that Mr. Hall served the Stop-Work Order at 11:15 a.m. was deemed more credible under all of the circumstances than the notation in the Narrative that it was served at 10:30 a.m. Respondent executed a Payment Agreement Schedule for Periodic Payment of Penalty and was issued an Order of Conditional Release from the Stop-Work Order on February 6, 2013. Po’ Boys failed to secure the payment of workers’ compensation for its employees from January 31 through February 24, 2010; June 8 through September 3, 2010; and July 11, 2012, through January 29, 2013. It obtained coverage sometime on January 30, 2013. Respondent would have paid an amount less than $11,565.68 in premiums for those periods during which it failed to secure the payment of workers’ compensation, because that figure should be reduced by the premium paid for coverage on January 30, 2013. Payroll records submitted by Po’ Boys indicate several employees were paid for varying hours after 11:15 a.m. on January 30, 2013. The parties stipulated that the Department has assigned the appropriate class code and manual rates to Respondent's employees from the NCCI SCOPES Manual.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, Po’ Boys, Inc., violated the requirement in chapter 440, Florida Statutes, that it secure workers' compensation coverage for its employees, and imposing upon it a total penalty assessment of $17,349.70, reduced by the amount attributable to lack of coverage on January 30, 2013. DONE AND ENTERED this 23rd day of May, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2013.
The Issue Whether Respondent Employer has committed an unlawful employment practice against Petitioner by discrimination against her on the basis of race, sex, handicap, or retaliation, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a Negro female. As of March 12, 2003, she was rated by the Veterans’ Administration (VA) as having a 30 percent disability, due to a knee injury which occurred while she was on active military duty. (Petitioner’s unrefuted testimony and Exhibit P-37.) Petitioner specifically has alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, and that she was denied a reasonable accommodation for her alleged knee “handicap.” Her “disparate treatment” allegation was presented in two respects: (1) that employees outside Petitioner’s protected racial class were not disciplined as harshly as Petitioner; and (2) that because Petitioner had worked for Respondent Employer for more than twelve months’ total, the State of Florida career service rules do not support her being terminated as a “probationary employee” from the position to which she was promoted and in which she had worked for less than twelve months at the time of her termination. Petitioner was first employed by Respondent Employer on November 15, 2002, at St. Lucie Regional Juvenile Detention Center in the position of Juvenile Detention Officer (JDO). After completing her twelve months’ probation in that position, Petitioner attained permanent State of Florida career service status. This meant that Petitioner was considered a permanent State of Florida employee, but it did not mean, as she has asserted, that she did not have to undergo a twelve months’ probationary period in each career service promotional position, if and when she attained one, or that she could never be terminated for cause. (See Conclusions of Law.) On September 10, 2003, at Petitioner's request, she was transferred from St. Lucie Regional Juvenile Detention Center to a vacant JDO position at Alachua Regional Juvenile Detention Center (ARJDC or “the facility”). This transfer permitted her to pursue a higher education at Santa Fe Community College (SFCC) in Gainesville, via her VA benefits, while being employed fulltime. When she transferred, Petitioner prepared a memo to all her supervisors at ARJDC stating that she needed to work the 11:00 p.m. to 7:00 a.m. shift so she could attend college classes in the mornings. However, at no time did the Employer guarantee that Petitioner would always be assigned to that shift. (P-35) At all times material, Petitioner was a single parent, working full time, and taking college classes. As a single parent, she was the sole support of her child. Because she was going to college pursuant to VA guidelines, she had to attend her classes and successfully complete them in order to continue to receive VA tuition and assistance. At all times material, Jill Bessette (Caucasian female) was employed in the position of ARJDC’s superintendent. As such, she was responsible for the overall functioning and operations at ARJDC, and for ensuring the safety and security of that facility’s juveniles and staff. Bessette relied on the facility's two assistant superintendents, Patricia Newman (Caucasian female) and Charles Parkins (Caucasian male), to assist her. Newman and Parkins oversaw daily operations, attended to personnel matters, and provided direct supervision of staff. In so doing, they regularly made written and oral reports to Bessette. On February 13, 2004, as a result of good reports about Petitioner's performance as a JDO at the facility, Bessette promoted Petitioner to the position of Senior Juvenile Detention Officer (SJDO). (P-17). On or about February 23, 2004, Petitioner complained to her superiors about Douglas Singleton (male) evaluating her, because she felt he had not observed her often enough. She was also rated by a female officer, Cohen, and wanted Cohen’s rating retained. This may have been a departmental career service or a union grievance, but it appears to have had no discrimination overtones. (See Findings of Fact 31 and 34.) Assistant Superintendent Parkins, who was Petitioner’s direct line senior supervisor, denied Petitioner’s grievance about her rating as untimely, but Petitioner did not demonstrate any specific negative personnel action resulting directly from Singleton’s evaluation. There is no evidence that this rating reflected that Petitioner was ever tardy or had unexcused absences. (P- 24, 25). After her termination in September 2004, Petitioner wrote the Governor stating that she had complained to Parkins in March 2004, about his attempt to switch her to a shift which would have interfered with her college classes and that Parkins was hostile about her going to college (P-36), but at hearing she presented no credible evidence that such an attempt by Parkins had ever occurred or that she had ever complained to anyone about such an attempt prior to her termination. Additionally, Petitioner was consistently assigned to the 11:00 p.m. to 7:00 a.m. shift she had requested until September 2004. (See Findings of Fact 31-35, 55, and 75, and Conclusion of Law 81.) In late February 2004, Petitioner complained because Newman, the assistant superintendent most concerned with timesheets, had inquired of a middle-level supervisor why Petitioner had been absent on a specific day. The testimony about this incident is so sparse, disjointed, and inconclusive that the undersigned cannot determine whether Petitioner also filed any type of grievance about Newman’s inquiry, but again, Petitioner’s complaint does not seem to have had anything to do with discrimination. (See Findings of Fact 31, 34.) In any case, Newman was apparently satisfied when informed by Cohen that Petitioner had been on pre-approved leave, and Petitioner did not suffer any detrimental personnel action specifically as a result of Newman’s inquiry. (Cf. Findings of Fact 74-75.) During the first week of April 2004, Petitioner tendered a letter of resignation to Bessette, which Bessette reluctantly accepted. Bessette testified that the only reasons Petitioner gave for this resignation were personal ones unrelated to discrimination. Petitioner did not testify otherwise. A short time later, Petitioner reconsidered her decision, and Bessette accepted Petitioner’s rescission of her resignation in such a way that Petitioner suffered no lapse in her career service. (R-5). From April 13, through July 25, 2004, Bessette took extended medical leave. During Bessette's absence, Assistant Superintendent Charles Parkins assumed the role of “Acting Superintendent.” At all times material, Shirley Edmond (Negro female) and Bruce Perry (Negro male) were employed by ARJDC as middle level supervisors. They supervised the JDOs and SJDOs assigned to their shift(s). At ARJDC, there are three shifts around the clock. SJDOs and JDOs at the facility are assigned to work shifts. In order to maintain an appropriate minimum correctional officer- to-juvenile detainee ratio, and in order to ensure the safety and security of staff, juveniles, and the community, SJDOs and JDOs are subject to having their shift assignment rotated or changed. Also in order to prevent the facility from operating below minimum staffing levels, JDOs and SJDOs may be required to “holdover” or continue working into the next shift when asked to do so as a result of on-coming staff members’ tardiness or absence. As a result of minimum staffing level requirements, ARJDC's operating procedures address the issue of tardiness and identify three instances of tardiness in any rolling 90-day period as “excessive.” (R-17). ARJDC’s operating procedures also address absenteeism. The required procedure for “calling in sick” requires employees seeking approved leave to contact the on-duty officer or acting supervisor at least two hours in advance of the employee’s report time, and further requires that thereafter, the employee also speak to the shift supervisor and discuss the employee's return-to-work date. Medical verification may be required by the Employer for absences in excess of three consecutive days. (R-17). Upon her hire, and again in June 2004, Petitioner was made aware of, and was provided with, a copy of the Employer’s policies and procedures with regard to absenteeism and tardiness. (R-3, 19). From May through June or early July 2004, Petitioner, Perry, and Edmond all worked the 11:00 p.m. to 7:00 a.m. shift. During these months, both Perry and Edmond observed that Petitioner frequently arrived late for her shift, that is: more than one minute after 11:00 p.m., which is the grace period allowed by the facility’s policies and procedures. (R-17). On one occasion, Perry spoke to Petitioner about her tardiness. Petitioner attributed her tardiness to problems with her babysitter. At all times material, Petitioner was aware of the Employer’s policy against, and procedures for reporting, discrimination or sexual harassment. These procedures are given in numbered paragraphs, but are not referred to as “steps.” They permit Petitioner to involve the internal EEOC officer and the Employer’s hierarchy outside the facility. (R-4). On June 25, 2004, while he was her shift supervisor, Bruce Perry wrote Petitioner a counseling memo concerning her tardiness on June 1 and 25. She received the memo on July 13, 2004. (P-15). Shirley Edmond testified that July 22, 2004, Petitioner threatened her as set out in greater detail in Findings of Fact 68-72 infra, concerning Bruce Perry’s counseling memo. On or about July 16, 2004, Petitioner filed what was described as a “departmental grievance” against Perry’s counseling memo(s).2/ This grievance could have been brought pursuant to a union collective bargaining agreement or pursuant to Section 110.227(4), Florida Statutes. However, that statute provides a "two-step" grievance procedure only for career service employees who are no longer on probation in their current position, and it excludes consideration of both "discrimination" and "sexual harassment" issues, which are supposed to proceed through superiors and the EEOC officer. Due to her probationary status as SJDO, Petitioner would have been ineligible to pursue the statutory grievance. In any case, her grievance did not raise issues of sexual discrimination or sexual harassment (P-38), nor was it directed to an internal EEOC officer. On or about July 17, 2004, Petitioner sent an e-mail letter outside the facility to the Assistant Superintendent for Detention Services, Perry Turner. Respondent's discrimination and sexual harassment procedures permitted this. However, in the e-mail Petitioner complained in general terms that she was experiencing problems getting facility personnel, particularly Charles Parkins, to follow all the "steps," in appropriate sequence, of established grievance procedures. (P-39). Turner, who oversees all detention facilities and services statewide, and whose office is in Tallahassee, delegated responsibility for investigating Petitioner's complaint to Operations Manager Richard Bedson, who supervises all of the detention branches’ support services. Mr. Bedson had recommended Petitioner for her promotion to SJDO and for a raise in connection therewith, but they did not know each other. (P-17). He was not housed in her facility. He was entirely independent from ARJDC staff. On July 19, 2004, Perry rescinded his counseling memo to Petitioner (P-12), because it had been shown to Parkins that Perry was not on the same shift with Petitioner on June 25, 2004 (P-13), and/or that on June 25, 2004, or the other date cited in Perry’s memo (June 1, 2004), Petitioner had prior permission from a different supervisor to “back down” her hours so as to legitimately arrive late for her shift (P-39). Perry’s testimony herein confirmed that for one of the days cited in his counseling memo, he had relied on someone else’s observation of Petitioner’s tardiness, and that he, himself, had not seen that particular tardy arrival. In any case, a counseling memo is not considered a disciplinary memo, and Perry’s memo stated that fact. (P-15). A counseling memo does not begin the three-tier progressive discipline that could lead to termination of a permanent employee for cause, and Perry’s counseling memo was rescinded, anyway. Petitioner acknowledged that the offending memo was rescinded after she complained about it. Despite the happy outcome for Petitioner of her grievance about Perry’s counseling memo, Petitioner claimed at hearing that everything that happened to her after February 2004, was the result of Parkins’ retaliation against her for filing the first evaluation grievance which Parkins had ruled was untimely (see P-12, 14, and Finding of Fact 10) and/or because Parkins and Perry were retaliating against her for grieving Perry’s alleged sexual harassment of her. At hearing, Petitioner testified that from late May 2004 to June or July 2004, Bruce Perry made suggestive remarks to her about her lips and buttocks; made comments designed to make others infer that Petitioner and Perry were sexually involved; put his hands on her shoulders; and rubbed his privates in her presence. She claimed that she rejected Perry and reported these unsavory and harassing activities to superiors Parkins (male), Singleton (male), Smith (female), and Cohen (female), and that thereafter, Perry created a hostile and retaliatory workplace for her. She also related that Freda Smith, a middle level supervisor, had promised to report Petitioner’s complaint of sexual harassment by Perry to Parkins. None of the foregoing supervisors Petitioner named corroborated that Petitioner had reported any sexual incident with Perry to them. Of the supervisors Petitioner named, only Parkins actually testified, and he denied that either Petitioner or Freda Smith, on Petitioner’s behalf, had made any such report to him. (R-20). Bruce Perry denied in writing, when the issue was first raised after Petitioner’s termination, and in his testimony herein that he had committed any of the acts of which Petitioner accused him. (R-7). Interestingly enough, although Parkins and Perry both denied any knowledge of Petitioner reporting Perry to Parkins, Petitioner personally testified that when she had reported Perry to Parkins, Parkins removed her from the area physically near Perry and later removed Perry from her shift altogether, so as to separate them. Perry confirmed that he only worked with Petitioner "a couple months" until he was removed from her 11:00 p.m. to 7:00 a.m. shift. When, precisely, Perry was removed from that shift is not clear on this record. Petitioner testified that she needed larger pants for her correctional officer’s uniform, to accommodate the knee brace she sometimes needed to wear for her prior military injury, and that Perry had remarked that her pants were all right, in connection with his comments about her buttocks. Perry denied making any suggestive remarks. No other witness noticed a problem with Petitioner’s uniform pants or that Petitioner was in any manner unable to do her job, due to her knee or for any other reason, until she had a shoulder injury on August 4, 2004, as described infra. However, Petitioner testified that Parkins told her to get a doctor’s note stating that she needed the knee brace. Petitioner had admitted in evidence such a note from her doctor dated July 21, 2004, on which she had printed a note to Parkins requesting larger uniform pants and stating she had spoken to Parkins about the larger pants a month before July 21, 2004. This note said nothing about Perry or his alleged sexual comments. (P-11). Petitioner's testimony is not entirely clear as to whether she believed that Parkins refused her request for larger uniform pants, or just ignored it, but since she admitted that she slipped the note under Parkins’ office door when she was told by another supervisor that Parkins would not be in, her delivery system may have failed to get her doctor’s note to Parkins. Parkins testified that he recalled no requests, either oral or written, for bigger uniform pants, but if he had received such a request he would merely have passed it on to the person who was in charge of ordering/issuing property on a regular basis. It is probable the property officer only worked a standard day shift, while Petitioner worked the 11:00 p.m. to 7:00 a.m. shift. On July 25, 2004, Bessette returned and resumed her duties as superintendent of ARJDC. Bessette testified that she knew nothing of any sexual harassment allegations until after Petitioner was terminated in September 2004, and the evidence as a whole shows that Petitioner first approached internal and external EEOC officers about sexual harassment only after she was terminated. (R-7, P-26,36) Moreover, in late July, Petitioner had every opportunity to speak to the Employer’s non-facility personnel to resolve any alleged “sexual harassment,” “hostile work environment,” racial discrimination, retaliation, disparate treatment, or problems concerning being denied a reasonable accommodation for her alleged knee “handicap,” but she did not do so. In late July, Operations Manager Richard Bedson telephoned Petitioner at the facility and asked if he could speak to her about the concerns she had expressed in her letter to Assistant Superintendent for Detention Services, Perry Turner. (See Finding of Fact 26.) Petitioner refused to speak to Bedson over the phone about her e-mail to Turner or her concerns, stating she did not know who Bedson was and she was not going to speak to him unless someone else on the phone vouched for him. Bedson then arranged to meet with Petitioner, personally. (P-39). Discrimination investigations, particularly those involving sexual matters, are best begun by a discreet meeting between the investigator and the complainant alone, but Petitioner had not told Mr. Bedson what her problems were, and her memos had referred to “step” grievance procedures which are a union device. The use of the word "step" could also have referenced the Section 110.227(4) procedure which, by its nature, could not deal with "discrimination" or "sexual harassment." (See Finding of Fact 25.) Petitioner also had declined, via e-mail, to come to Bedson's office in another city unless she received per diem travel pay, and had stated that she preferred to meet at ARJDC. (P-39). Therefore, Bedson held a meeting on July 30, 2004, with Petitioner, Bessett, Parkins, and Petitioner's union representative, Mr. Reeves, who is a teacher from outside the facility. Bedson chaired the meeting and asked Petitioner to relate her concerns regarding her treatment at ARJDC. At no time during the July 30, 2004, meeting did Petitioner indicate she was being, or had been, sexually harassed; that she or anyone else was the subject of any type of disparate or preferential treatment; or that she had a knee injury that was not being accommodated. She did not state that she was entitled to preferential treatment by virtue of being a veteran. She did orally accuse Parkins of practicing undefined retaliation against her. However, she refused to discuss anything more and stated she would put her concerns in writing. Bedson informed Petitioner that he would request that an investigator meet with her as quickly as possible so that an investigation could occur. He then concluded the meeting. After this meeting, Bedson telephoned Operations Management Consultant II James Darbin Graham, who is assigned to Respondent Department’s North Region Office. He directed Graham to meet with ARJDC staff and Petitioner to determine what Petitioner’s concerns were and to conduct an investigation as necessary. Bedson recounted to Graham his earlier meeting with Petitioner, her prior e-mail, her general allegation of "retaliation" by Parkins, and her refusal to provide any further explanation. On August 4, 2004, while working the 11:00 p.m. to 7:00 a.m. shift, Petitioner injured her shoulder opening a door. She left the facility for the hospital. After treatment at the hospital, she returned to the facility at approximately 5:00 a.m. with hospital paperwork for facility administrators so that she could obtain workers' compensation benefits, including medical care, disability pay, and leave. On this same morning, Graham arrived, unannounced, at the facility at approximately 6:00 a.m. to meet with Petitioner. He was advised that she had left for the hospital, but then he spotted her in the ARJDC lobby. Petitioner was wearing a hospital gown, and her arm was in a sling. Graham introduced himself to Petitioner and advised that he needed to speak to her. Petitioner refused to speak to him, stating she was on medication and that he would have to make an appointment so that she could have her union representative at the meeting when she was not feeling the effects of the medication. In order to be able to arrange such a meeting, Graham advised Parkins that he needed to speak with Petitioner upon her return to work from medical leave. From August 4, 2004 onward, Parkins did not arrange such a meeting or notify Graham when such a meeting could occur. Graham concluded this was because of Petitioner’s extended absence and subsequent termination, effective September 8, 2004. As a result of her on-the-job shoulder injury, Petitioner was immediately placed on workers’ compensation leave. The parties agree that Petitioner was entitled to all workers’ compensation benefits, including medical care, leave, and pay, from August 4, through August 10, 2004. It is the two periods of August 10, to August 19, 2004, and August 20, to September 8, 2004, that drive this case. Assistant Superintendent Newman maintains and processes paperwork related to workers' compensation for the facility. On August 10, 2004, Petitioner’s medical physician released Petitioner to return to work with the following restrictions and medications: Employee is to avoid all use of affected arm. . . . Avoid lifting, reaching, grasping with right arm only. Physical therapy ordered. Stop percocet and discontinue sling. The following medication(s) has (have) been prescribed: Naproxen . . . Effects include . . . dizziness Metaxalone . . . May cause drowsiness Cyclobenzaprine . . . common side effects include drowsiness, decreased judgment, . . . blurred vision . . . caution should be exercised when driving or operating dangerous equipment Tramadol . . . May cause sedation . . . Use caution when driving or operating dangerous machinery. (Emphasis supplied) (R-2). Petitioner received a copy of the foregoing document, as quoted supra. It is probable that the Employer’s independent workers’ compensation contract carrier, “Covel”, also received a copy, but there is no evidence this detailed document was presented to anyone at ARJDC. However, ARJDC was made aware of its medical restrictions on use of Petitioner’s arm. “Master Control” is the only light duty available at ARJDC. It has always been used for situations such as Petitioner’s, and is the only “accommodation” Respondent has available. Master Control is a desk assignment away from juvenile detainees, which requires only monitoring cameras, answering telephones, and pushing buttons, but which has no potential for strenuous restraint of, or harm from, detainees. Petitioner was advised on August 10, 2004, that the facility could accommodate her doctor's restrictions of modified duty by assigning her to Master Control. However, Petitioner did not report to work for nine more days, or until August 19, 2004.3/ Petitioner also did not obtain authorization for her absence August 10-19, 2004, using the methods required by the Employer’s policies and procedures. (See Findings of Fact 16- 18.) Instead, Petitioner reached Parkins by telephone on August 10, 2005, and told him that her medications were making her too drowsy and dizzy to drive. Parkins took what Petitioner told him at face value. He was concerned about Petitioner’s safety and the Employer’s liability. He told her not to come to work until she could drive or could see her doctor. Petitioner followed up on their conversation by faxing Parkins, that same day, a written explanation that she was on four medications and that three out of the four medications, which she did not name, were causing her symptoms. (P-34). Petitioner’s next doctor’s appointment was not until August 19, 2004, so she did not report to work until after that appointment. Although her physical restrictions diminished over time, from August 4, 2004, until October 20, 2004, Petitioner’s workers’ compensation physician continued to prescribe one or more medications for Petitioner which could have rendered her dizzy or drowsy. (P-10, 32). However, there is no evidence this information was sent to ARJDC, even though it probably was sent to the independent workers’ compensation contract carrier, Covel. Petitioner did not work the full 11:00 p.m. to 7:00 a.m. shift in Master Control on August 20, 2004. Upon her placement in Master Control early, at about 10:30 p.m., on August 19, Petitioner immediately complained of pain in her shoulder and drowsiness from her medications. After she was observed with her head on the table, she was sent home by her supervisor. She had been present on the jobsite about an hour. Petitioner called in on August 21, 2004, at midnight (an hour after she was due to report for her shift), to say she had just awakened, was in a lot of pain, and would not be reporting to work. Petitioner did not follow proper procedures in reporting this absence. (See Findings of Fact 16-18.) Petitioner's regular days off work fell on August 22, and 23, 2004. On August 24, 2004, Petitioner still did not report to work and did not call the facility, as required by Respondent’s policies and procedures. On August 24, 2004, Assistant Superintendent Newman received a call from Julie Bumgardner of Covel, who wanted to be sure that the facility was accommodating Petitioner’s workers’ compensation shoulder injury with an appropriately restricted work assignment. When Newman indicated that Petitioner continued to be absent due to drowsiness associated with her medication, Bumgardner advised Newman that the medications Petitioner was currently prescribed for her workers' compensation injury did not contain narcotics to make her drowsy and Petitioner should have returned to work on August 10, 2004, with the accommodation for her arm as previously stated. Bumgardner faxed Newman either an incomplete copy of the August 10, 2004, physician's order, which did not mention the four drugs which could have been making Petitioner dizzy or drowsy between August 10-19, 2004, but which did say to discontinue percoset, and/or a separate document showing that the narcotic percocet had been discontinued by the physician on August 10, 2004, and which listed the other four drugs, but not their side effects. (R-8). As a result of this incomplete and therefore misleading information, Newman and Bumgardner concurred that any of Petitioner’s absences after August 10, 2004, should be charged against Petitioner’s accrued sick and annual leave and should not be categorized as workers’ compensation leave. Petitioner was credited with working eight hours on August 25 and eight hours on August 26, 2004. On August 26, 2004, Newman wrote a memo to Petitioner advising her that effective Friday, September 10, 2004, Petitioner was being temporarily reassigned to the 7:00 a.m. to 3:00 p.m. shift in Master Control. The memo explained to Petitioner that Newman's purpose in this reassignment was to further accommodate Petitioner by assigning her to Master Control during the day shift when another employee, also assigned to this same station, could assist Petitioner if Petitioner needed assistance. By writing the memo on August 26, and not making the assignment change effective until September 10, Newman intended to give the customary two weeks’ notice so that Petitioner could arrange her personal life to fit the change of shift. When she wrote this memo, Newman should have, but did not, realize that Petitioner was taking morning classes. When she received this memo on August 26, 2004, Petitioner believed that she was entitled to never be reassigned to a shift that did not accommodate her college classes. She refused to sign, acknowledging receipt of the memo. Petitioner wrote the following on the bottom of Newman’s memo: I am confused about this letter because of the last letter I received from D.S. Bessette. I cannot sign this at this time. You must have me confused with SJDO L. Green. She’s the one with the shift ch[ange].(R-10) In her routine review of employee timesheets, Newman had noted that Petitioner had not signed her timesheet covering August 13, 2004, through August 26, 2004, and that Petitioner had claimed “leave without pay: code 60”, signifying that she expected to receive workers’ compensation disability pay and not be docked any sick or annual leave for that period of time. On August 27, 2004, Newman issued a memo to Petitioner's immediate supervisor, Wilcox, requesting that Wilcox address with Petitioner the incorrect coding Petitioner had written into her timesheet covering the dates of August 13, through August 26, 2004. (P-33). Ms. Newman also wrote across Petitioner’s first timesheet (see Finding of Fact 57), in red ink, advising Petitioner: Ms. Francis you need to recode your leave to 52-sick and resubmit w/ signature. According to your doctor’s note you should have assumed work duties on the 10th of August. (R-12) Workers’ compensation pay does not begin until a specified time after the compensable accident. Many employers, including this one, have an elaborate system in place to pay an employee full salary and adjust leave categories of accrued sick and annual leave to make up the difference between the workers’ compensation rate and the regular pay rate, instead of paying the employee just the lesser amount permitted by the workers’ compensation statute. However, neither of those considerations was afoot here. Here, despite Newman’s testimony as to “the first 40 hours of workers’ compensation coverage,” the exhibits clearly reveal that Newman was attempting to get Petitioner to use her accrued sick leave to cover any time she had been absent from work after August 10, 2004. Because of her conversation with, and the incomplete materials supplied by, Bumgardner, Newman believed this was the correct way to code Petitioner’s timesheet. (See Findings of Fact 49-53.) When she received Newman’s August 27, 2004, memo to Wilcox, that same day, Petitioner responded to it by writing a note on the bottom in which she stated that she was not going to use sick leave; that she had permission from Parkins for her August 10-19, absence; that she was on four different “meds”; that her arm became swollen when she did come in on August 19; and again that she would not use sick time for an on-the-job injury that Newman refused to accommodate. Petitioner then finished with I am so sick and tired of the inconsistency and lack of communication among the management team. . . . You all need to stop this please. (P-33) Petitioner’s adamant and belligerent attitude did not sit well with Newman who, based on the information provided by Bumgardner, believed she was just doing her duty. On September 2, 2004, Newman came in at 6:00 a.m. to talk to Petitioner before Petitioner went off her shift at 7:00 a.m. Petitioner insisted on being confrontational with Newman in front of staff, instead of coming to Newman’s office as Newman requested. Petitioner adamantly refused to change the first timesheet or to sign it. (R-14). She stated to Newman that she had relied on Parkins’ oral authorization to be on workers’ compensation leave from August 10, to August 19, 2004. She later submitted a new, typed timesheet, still claiming “Code 60-workers’ comp. disability” for each of her scheduled work days between August 13, and 24. This version she signed. (R- 13). Newman caught up to Petitioner as Petitioner was checking out at the time clock on September 2, 2004; handed her a copy of the August 26, 2004, memo (see Finding of Fact 55); and inquired if Petitioner would be reporting as previously ordered to the 7:00 a.m. to 3:00 p.m. shift on September 10, 2004. Petitioner stated she could not make the change due to her babysitter and previous registration for college classes. She continued to rely on Parkins’ oral authorization for August 10-19, and apparently expected workers’ compensation considerations for her absences after August 19, 2004, as well. (R-14). Newman never received corrected timesheets from Petitioner, despite explaining the situation to someone from Petitioner’s union who telephoned Newman and offered to act as an informal intermediary. Finally, in order to get Petitioner paid on time, either Newman or Parkins filled out a timesheet covering August 13 through August 26, 2004, and signed for her. Petitioner ultimately was charged sick leave from August 10-20, 2004, and was declared absent without authorization for August 21 and 24, when she had not followed the prescribed procedures for an authorized absence. (See Findings of Fact 49 and 51.) This meant that Parkins had retroactively withdrawn his oral authorization for Petitioner to take workers’ compensation leave for August 10 through August 19/20, and that Respondent viewed Petitioner’s absences on August 21 and 24 as unexcused. From the way this case was presented, it is difficult, if not impossible, to pinpoint when Petitioner did, and did not, report for duty after August 26, 2004. For instance, Petitioner insisted that she was not scheduled for duty on September 3, 2004, because that was the date of Hurricane Frances. She also claimed she could not work on September 3, 2004, because that was a day on which lack of accommodation the night before had caused her arm to swell. (See Finding of Fact 68.) Parkins confirmed that he did not schedule any “light duty” officers, of which Petitioner was one, for duty during Hurricane Frances, but he did not know the date of Hurricane Frances. Another witness thought Hurricane Frances had occurred in August 2004. If Hurricane Frances occurred on August 3, 2004, instead of September 3, 2004, then all such testimony is irrelevant because Petitioner's arm was not injured until August 4, 2004. There is documentation and testimony from Newman and Petitioner that Petitioner worked September 2, rolling into September 3, 2004. (See Finding of Fact 68.) Other dates Petitioner worked are equally confused or obscure, but Petitioner claims she worked August 25-28; was off on August 29-30; and contradicts herself that she was, or was not, scheduled to work on August 31, 2004; and was, or was not, scheduled to work on September 3, 2004. (See, infra.) However, both Petitioner and Edmond agree that on September 2, 2004, Edmond assigned Petitioner to a regular duty post. Edmond claims the assignment was a pure mistake on her part. Petitioner complained, via a 6:05 a.m. September 3, 2004, e-mail to Bessette, Newman, and Parkins, that her arm was swollen because of Edmond’s mis-assignment. (R-18). Petitioner’s e-mail also asserted that the Employer was not accommodating her work restrictions from her workers’ compensation doctor and that she was unable to come in to work that night due to her swollen arm. On September 3, 2004, at 11:35 a.m., about five-and-a- half hours after Petitioner’s complaint about Edmond’s assignment of her to regular duty on the 11:00 p.m September 2, to 7:00 a.m., September 3, 2004, shift, Edmond provided Bessette with a written statement, via e-mail, relating that on July 22, 2004, Petitioner threatened to "take her [Edmond] down." Edmond testified that shortly after receiving Perry’s June 25, 2004, counseling memo, Petitioner had called Edmond into a courtyard area at the facility to discuss her tardiness and her belief that management was tracking her tardiness. Respondent had always tracked its employees’ tardiness but had recently added a new method of keeping track. Petitioner referred to management’s tracking of her tardiness as "foolishness." Petitioner told Edmond not to engage in such behavior or Petitioner would “take her down" with the rest of management. Edmond claims to have acknowledged the incident to her immediate supervisor, Wilcox, on the same night it occurred. Wilcox was not called to corroborate Edmond’s testimony, and Edmond did not memorialize the event in writing until September 3, 2004, when she felt her job was being threatened by Petitioner’s September 2, 2004, memo of complaint. (See Finding of Fact 68.) Edmond testified that she also notified Bessette on September 3, 2004, about the July 22, incident because she believed that Petitioner was using codeine on the job. There is insufficient credible evidence to substantiate Edmond's testimony about codeine. It is more likely that Edmond related the story about July 22, 2004, to Bessette in retaliation for Petitioner's complaining that her workers’ compensation injury was not being accommodated by Edmond. The fact that Edmond also kept the July 22, 2004, incident to herself for six weeks renders the truth of her whole testimony suspect. However, that does not mean that Edmond's superiors had reason to disbelieve her September 3, 2004, accusation. Since August 24, 2004, Parkins and Newman, in reliance on Bumgardner, believed that Petitioner was using a narcotic drug (percocet) which her doctor had told her to discontinue on August 10, 2004. They were unaware that some of the other drugs legitimately prescribed by Petitioner’s authorized workers’ compensation physician might have caused the drowsiness and dizziness that had kept Petitioner from reporting for work between August 10 and August 19, 2004, and sporadically thereafter. (See Finding of Fact 53.) After Julie Bumgardner’s mis-information had been received on August 24, 2004, and continuing onward, Superintendent Bessette received reports from Newman, Parkins, and Edmond about Petitioner’s tardiness problems. It is not clear what instances of tardiness besides those occurring after August 10, 2004, were actually reported to Bessette. It is probable that both Newman and Parkins had an overall impression that Petitioner had frequently been tardy over the whole period of her employment at ARJDC, and it is possible, but not proven, that the rescinded Perry counseling memo (see Findings of Fact 23-27) was remembered or utilized. However, tardiness was only part of Bessette’s considerations. Bessette was also apprised of Petitioner's incorrectly coded timesheets and adamant attitude that she would not use sick leave to cover time off. Petitioner’s belligerency toward Newman and her attitude that everyone was “out to get her” aggravated the situation. Bessette considered Petitioner's refusal of Newman’s direct order to correct her timesheets to be insubordination. Parkins and Newman believed, however erroneously, that Petitioner was taking the narcotic percocet, contrary to her doctor’s instructions. Parkins may also have believed and resented that his oral authorization to Petitioner for leave August 10-19, had been obtained by fraud. The report to Bessette of a threat against Edmond was the last straw. Upon the mounting objections to Petitioner’s job performance, and based on a consensus of Newman, Parkins, and herself, Bessette determined that discipline was appropriate and requested authorization from her superiors to terminate Petitioner, which they granted. Petitioner was terminated by a September 8, 2004, letter, effective that date, stating that her termination was because of . . . your failure to satisfactorily complete your probationary period . . . . (P-9) Petitioner proved that ARJDC SJDO Genevieve Hazelip (Caucasian female), Respondent’s employee since 2000, was disciplined in the position of SJDO on one occasion in January 2005, after Petitioner was terminated. This was an oral reprimand for “a conversation with racial undertones, regardless of intention". (R-15). The oral reprimand of Hazelip was only stage one of the Employer’s three-stage progressive disciplinary system, which could lead to termination of a permanent employee at the third step. If Hazelip was on probation in her SJDO position, the Employer did not have to go through the three steps to terminate her, but it was not proven that Hazelip was on probation when she received the oral reprimand. Petitioner also proved that Hazelip was disciplined on two other occasions but was unable to establish whether these disciplinary actions occurred while Hazelip was a JDO or an SJDO or what level of discipline was imposed either time. At hearing, Petitioner claimed that Caucasian officers at ARJDC regularly got weekends and other coveted days off and Negro officers did not. She submitted nothing to substantiate this allegation, but admitted that there were more Negro officers than Caucasian officers and that she had never complained about the shift assignments because she was not dissatisfied with her own days off. It also may be reasonably inferred that Petitioner was not privy to any requests by other officers, Caucasian or Negro, for what shifts or days they wanted to work.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of September, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2006.
