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 The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Respondent has been employed by the School Board as a teacher since 1990. For the 2009-2010 school year, Respondent was employed pursuant to a professional services contract as a kindergarten teacher at Rogers Garden Elementary School (Rogers Garden). She was transferred to Rogers Garden from Wakeland Elementary, where she had taught a pre-kindergarten class during the previous school year. The precipitating cause for the Administrative Complaint against Respondent was that during the 2009-2010 school year, out of the 190 school days when Respondent was expected to be at work, she was absent for at least 95 days.3 The School Board's policy on employee attendance, set forth in Policy 6.2 of the School Board's promulgated Policies and Procedures Manual, has as its basic premise that employees are expected to be present and working at the job site at all times. If an employee is going to be absent from work, authorization is required in the form of sick leave or other approved absence. In general, an employee such as Respondent, accrues ten sick-leave days per ten-month school year. If not used, accrued sick leave accumulates from year to year. "Personal" leave sought for personal reasons, instead of medical reasons, may be requested, and, if allowed, comes out of accrued sick leave. Once an employee runs out of accrued sick leave, the options are either to borrow sick leave from the "sick leave bank," if the employee is eligible, or to request unpaid leave, which may be allowed if the reason is substantiated.4 Under School Board Policy 6.2(2)(b)(2), if an employee is absent even one day without having obtained authorization, the employee is subject to termination. Under the same policy, even if authorization is obtained for an employee's individual absences, those absences can mount to the point that they become "excessive." By the School Board's policy, excessive absenteeism, even though authorized, subjects an employee to termination because of the adverse impact on the school, the students, and the other employees. The School Board policies do not adopt any bright-line test quantifying what constitutes "excessive" absenteeism. Instead, the circumstances are considered in each case. As the Superintendent credibly explained, a uniform standard quantifying excessive absenteeism for all School Board employees would not make sense, because the impact varies depending on the position the employee holds. A school district bears a greater adverse impact from absences by a classroom teacher than from absences by most other types of employees. The classroom teacher's ongoing presence is critical to carrying out the school district's educational mission because of the relationships the teacher builds with his or her students. The adverse impact from teacher absences is probably greatest for a kindergarten teacher, because kindergarten students are most vulnerable to harm from disruption in the classroom routine and teacher changeover. The Superintendent explained the factors he considers when assessing a complaint of excessive absenteeism. He would consider whether the employee's absences exceed average absences for other employees. He would review the employee's overall record, including indicators of performance issues or disciplinary matters. He would consider mitigating circumstances, such as the reasons for the absences. All of these factors would be judged in the context of what position the employee was holding when the absences occurred, so as to consider what adverse impacts were imposed on the school system. Wendy Mungillo, principal of Rogers Garden for the 2009-2010 school year, became concerned about Respondent's attendance by January 2010. The issue was brought to her attention by other teachers who were part of the kindergarten team, because the others were having to pick up the slack. Lesson plans for Respondent's kindergarten class were not always completed to the extent that a substitute could carry them out. Substitutes could not always be arranged quickly enough, so coverage for Respondent's absences had to be provided through the team. By January 15, 2010, Respondent had called in sick on 15 work days, necessitating arrangements for multiple substitutes. No medical documentation was requested for the sick leave up to this point, because the Rogers Garden principal was trying to give Respondent the benefit of the doubt, as is her common practice. Meanwhile, during this first half of the school year, Ms. Mungillo was attempting to evaluate concerns about Respondent's performance in the classroom. The principal had issued a Notice of Return to Documentation Program to Respondent on September 21, 2009, identifying numerous areas of concern. A Notice of Return to Documentation Program is issued when a principal has concerns about a teacher's performance in the classroom. The notice triggers a process of formal observations in which the principal schedules dates to attend class to observe and evaluate the teacher while teaching in the classroom. For each classroom observation, the principal prepares specific evaluation and feedback, in writing, and then conducts and records a post-observation conference with the teacher. After Respondent was placed on the documentation process, Ms. Mungillo was able to schedule and carry out only one 30-minute in-classroom observation on November 19, 2009, for which a post-observation conference was conducted on December 17, 2009. A follow-up observation was supposed to take place on January 15, 2010, according to Ms. Mungillo's notes on Respondent's attendance, but Respondent called in sick that day. The next time the principal attempted to schedule an observation, she described what happened in a written complaint, as follows: On Tuesday, February 9th, I met with Ms. Rainville to discuss several discipline referrals she had written that were inappropriate. I discussed with her that I felt like she needed help in her classroom with classroom management. At that time I also set up an observation with her for Friday, February 12th. I told her I wanted to see her teaching math. When I asked her when her math time was, she could not tell me[,] only that it was after lunch. Later that day she wrote me an email that stated the following: "Wendy, I just realized that the day we picked is the school Valentine's Day. I also have company coming from Brazil today. I would rather schedule this next week, please, Brook " Ms. Mungillo responded to Ms. Rainville's request to cancel and reschedule the classroom observation by stating that she was "not willing to change the date." Ms. Mungillo noted that there was no school-wide Valentine's Day activity planned and asked what Respondent's company from Brazil had to do with her teaching duties. Respondent did not directly respond; instead, she called in sick for February 10, 11, and 12, 2010. In effect, she unilaterally cancelled the scheduled observation after she was unsuccessful convincing Ms. Mungillo to reschedule it. Respondent also missed, with virtually no notice, an important exceptional student education (ESE) staffing meeting, which had been scheduled for February 10, 2010. Respondent was supposed to meet with persons from the ESE department and with the parents of one of Respondent's students to address ESE services for the student or problems the child was having. Attendance of all participants at these meetings is very important, not only because of the need to timely address the subject of the meeting, but, also, because it is a challenge to coordinate the scheduling of these meetings. Respondent offered no explanation for her absences on February 10, 11, and 12, 2010, either then or at the final hearing. The implication is that she was not at work, because she wanted to spend time with her company from Brazil, while avoiding her classroom observation. Incidentally, her absence caused, at a minimum, disruption to the ESE program, delay in addressing the needs of one of her students, and inconvenience to the parents and others involved in scheduling the meeting. Respondent's absence on February 12, 2010, was of particular concern to Ms. Mungillo. Ms. Mungillo saw a pattern to Respondent's absences, which were timed to avoid scrutiny of Respondent's classroom performance. Ms. Mungillo reasonably became concerned that this pattern was more than just a coincidence. Ms. Mungillo was aware that Respondent had been returned to the documentation process at Wakeland Elementary in the prior school year. At a conference in April 2009, the principal at Wakeland Elementary gave Ms. Rainville a Notice of Return to Documentation Program, identified the areas of concern with Ms. Rainville's classroom performance and outlined expectations. A memorandum summarizing that conference noted that a formal observation would not take place yet, but that a meeting would be held on May 22, 2009, to review Ms. Rainville's progress. However, on the morning of May 22, 2009, before the progress-review meeting could take place, Respondent had a fall in her classroom. As she explained it, she fell forward over the back end of a rocking chair and hurt her head and her right knee (where she had had knee replacement surgery less than a year earlier). Respondent filed a workers' compensation claim and did not return to work for the remainder of that school year. Because of budget cuts, Respondent's position at Wakeland Elementary was eliminated, and she transferred to Rogers Garden for the beginning of the 2009-2010 school year. Since Respondent never went back to the classroom at the end of the 2008-2009 school year, the Wakeland Elementary principal was never able to evaluate Respondent's classroom performance. There is no performance evaluation in evidence for Respondent for the 2008-2009 school year. Ms. Mungillo attempted to continue the documentation process started at Wakeland Elementary, but as noted, was only able to conduct one 30-minute classroom observation; the next two times Ms. Mungillo tried to schedule another classroom observation, Ms. Rainville called in sick. As it turned out, February 9, 2010--the day Respondent asked to cancel the scheduled February 12, 2010, classroom observation because of Valentine's Day and company from Brazil-- ended up being Respondent's last day at work to teach her kindergarten class in the 2009-2010 school year. So just like in the prior school year at Wakeland Elementary, Respondent's absences interrupted the Rogers Garden principal's ongoing effort to evaluate Respondent's classroom performance. Just as for 2008-2009, no performance evaluation is in evidence for Respondent for the 2009-2010 school year. On Friday afternoon, February 12, 2010, Ms. Rainville contacted the claims adjuster from her 2009 workers' compensation claim. She told him she wanted to re-open her claim for re-treatment because her right knee was hurting. Following a holiday, on February 16, 2010, Ms. Rainville was authorized to have her knee checked. She saw a physician who referred her to an orthopedic specialist and imposed interim work restrictions that would have allowed Respondent to return to work only if she could stay seated there. This was not reasonably possible for a kindergarten teacher, so beginning on February 16, 2010, Respondent was authorized to take workers' compensation leave. On February 25, 2010, Respondent went to the orthopedic specialist to whom she was referred, Dr. Shapiro. He examined Respondent and determined that she had no work-related injury. He also determined that Respondent was able to return to work without any restrictions, despite her knee issue. Dr. Shapiro conveyed the following work instructions for Respondent to the School Board's Risk Management Department: "No Restrictions/full duty work release to job position held prior to this injury." Dr. Shapiro also reported that Respondent has "[a]chieved Maximum Medical Improvement (MMI)" and that Respondent was "[a]ble to return back to work on Monday [March 1, 2010]." Respondent refused to acknowledge these instructions, because she disagreed with the doctor. Despite being medically cleared to return to work, Respondent called in sick on Monday, March 1, 2010, and again on Tuesday, March 2, 2010. Ms. Mungillo called Respondent on Tuesday morning to advise that medical documentation would be required for her absences that week. Ms. Mungillo also told Respondent that she had to know Respondent's intentions for her employment for the rest of the year; if Respondent was going to remain absent, Ms. Mungillo could arrange for a permanent substitute, instead of the multiple substitutes they had been scrambling to arrange on an ad hoc basis each time Ms. Rainville called in sick. On March 2, 2010, Ms. Mungillo submitted her concerns about Respondent's absences, along with Respondent's attendance records thus far that school year, to Debra Horne in the Manatee County School District's Office of Professional Standards (OPS). The OPS is the office that investigates matters of concern involving employees, if the matters could lead to suspension without pay or termination of employment. The OPS initiated an investigation that same day. Respondent's attendance records submitted by Ms. Mungillo to the OPS showed that through March 2, 2010, Respondent had been absent from work on 29 days when she was expected to be at work; on 28 of those days, she should have been teaching her kindergarten class. Instead, 11 different substitute teachers covered Respondent's kindergarten class. When substitutes could not be found quickly enough, other teachers had to provide coverage in addition to their own teaching responsibilities. In an effort to obtain the medical documentation required by Ms. Mungillo for the week of March 1, 2010, on March 4, 2010, Ms. Rainville went to see Dr. Alan Valadie, who had performed knee replacement surgery on Ms. Rainville's right knee in June 2008. He diagnosed "patellar clunk syndrome," which he described in his testimony as development of scar tissue that can occur in patients who had knee replacement surgery. This scar tissue catches at a point in the range of knee motion and can cause a clicking sound, with or without pain, at that point in the range of motion. The treatment for patellar clunk syndrome is more knee surgery to remove the scar tissue. Dr. Valadie concluded that Ms. Rainville should get the follow-up knee surgery. He filled out a Family Medical Leave Act (FMLA) application form for Ms. Rainville so that she could apply for leave from work in order to have the knee surgery and allow time for post-surgical recovery. On the FMLA application form completed by Dr. Valadie, he responded "no" to the question asking whether the employee is unable to perform any of her job functions due to the condition. However, he indicated that after surgery, she would need a recovery period when she would not be able to work. Dr. Valadie did not indicate on the FMLA application form whether the knee surgery he thought Ms. Rainville needed had already taken place or was scheduled for some future date. However, he specified that Ms. Rainville would require leave from work beginning on March 1, 2010. No ending date was provided despite the form calling for both a beginning and ending date for the requested leave. In total, the application was incomplete and confusing. If Ms. Rainville's pre-surgery knee condition did not render her unable to perform any of her job functions, then the only possible reconciliation of the responses was that she had had her surgery on March 1, 2010, but the form did not indicate that was the case. Separate from the FMLA form, Dr. Valadie also filled out a "Work/School Status Note," known as a "doctor's note," indicating that he had seen Ms. Rainville on March 4, 2010, and instructing as follows: "Patient is to be off work starting 3-1-2010 until furthur [sic] notice." As confirmed by Dr. Valadie's deposition testimony, both the FMLA form and the doctor's note were misleading. Dr. Valadie made clear that he thought he was filling out both the FMLA form and the doctor's note so that Ms. Rainville could arrange for leave in order to have the knee surgery and to have a period of time off from work after surgery for recovery. But Ms. Rainville did not have her knee surgery until July 9, 2010. Neither Dr. Valadie, nor any other physician, offered any medical justification for Dr. Valadie's statements in the FMLA application and the doctor's note that Ms. Rainville needed to be excused from work beginning on March 1, 2010. Instead, the only evidence in the record related to Ms. Rainville's medical status on March 1, 2010, was that Ms. Rainville was fully cleared medically to return to work. Dr. Valadie did not even see Ms. Rainville so as to diagnose the condition he said needed surgery until March 4, 2010. When he saw Ms. Rainville then, his medical judgment (like that of Dr. Shapiro) was that her knee condition did not interfere with her performing any of her job functions, as he indicated on the FMLA application. When Ms. Rainville submitted the FMLA application form filled out by Dr. Valadie, the school district staff handling those applications began calling Ms. Rainville for additional information, because the form was incomplete and seemingly inconsistent. Most significant to an FMLA request, the application lacked an end date, and it also lacked specific information on when the surgery had been done or was scheduled, so as to justify the beginning date. The staff attempted to get this information from Dr. Valadie, through Ms. Rainville. After several weeks, Ms. Rainville informed staff that Dr. Valadie had said the "end date" should be May 28, 2010, which coincides with the maximum 12-week leave allowed under the FMLA for this kind of request. Dr. Valadie was supposed to submit written confirmation of the medically necessary end date, but there is no such written confirmation in the record, and it appears that none was ever submitted. Ms. Rainville never responded to the staff's telephone requests for information regarding the surgery that was the basis for the leave request, such as whether it had occurred yet, and, if so, when. After these unsuccessful efforts to obtain complete information through telephone calls with Respondent, on May 5, 2010, Respondent was given written notice of the continued deficiencies in the FMLA application and documentation with one final chance to provide the missing information. When no revised application or additional information was received, on May 17, 2010, the FMLA request was finally denied. After Respondent conveyed an "end date" for her leave request, which she said she obtained in a phone conversation with Dr. Valadie, even though no written confirmation had been received yet from Dr. Valadie, on March 11, 2010, Ms. Mungillo signed an authorization for Respondent to take a regular (non-FMLA) unpaid leave of absence from school from March 1, 2010, until May 28, 2010. This allowed Ms. Mungillo to hire a permanent substitute for Respondent's kindergarten class. Ms. Mungillo authorized this leave because of the apparent medical necessity indicated by Dr. Valadie, even though the explanation remained confusing and inconsistent. Ms. Mungillo learned for the first time at the final hearing that Ms. Rainville did not have knee surgery until July 9, 2010, and that as of the final hearing date (approximately one month into the 2010-2011 school year), Ms. Rainville claimed she had not yet recovered to the point of being able to return to work. Ms. Mungillo testified credibly and without hesitation that she would not have approved Ms. Rainville's leave of absence from March 1, 2010, if she knew that Dr. Valadie did not think any leave of absence from work was medically necessary until the knee surgery was actually performed, which was not until July 9, 2010. Since the authorization for Ms. Rainville's leave of absence was obtained through misleading statements, that leave of absence should be considered unauthorized. At the very least, the leave of absence for the period of March 1, 2010, through May 28, 2010, was insufficiently documented with evidence of medical necessity for the entire period of time.5 Finally, to complete the school year, Pat Barber, Ms. Rainville's union representative, submitted another sick leave request for Ms. Rainville from June 1, 2010, through June 10, 2010, the last day of school. Ms. Mungillo gave her conditional approval, subject to receipt of a doctor's certification within five days. Ms. Barber submitted a prescription for Ms. Rainville apparently signed by Daniel Small, M.D., of the Sarasota Arthritis Center, stating as follows: "Off work 5/28/10?6/10/2010 due to continuing health problems. She is unable to perform her duties as a teacher at this time." No medical documentation or additional information was provided, such as when Ms. Rainville saw Dr. Small, what "health problems" were referred to, or how they interfered with Ms. Rainville's duties as a teacher. While Ms. Rainville's testimony at final hearing seemed to indicate that she was suffering from knee pain, she did not explain why she went to a different doctor, instead of the doctor whose care she was under for her knee condition and who ultimately performed the surgery. Upon the conclusion of the OPS investigation into Respondent's absenteeism, the results were presented to a panel comprised of persons within Respondent's chain of command, and the panel unanimously recommended to the Superintendent that Respondent's employment be terminated for violating the School Board policy against excessive absenteeism. Though not bound by the panel's recommendation, the Superintendent concurred and recommended that Respondent be terminated from employment. The Superintendent reasonably considered Respondent's overall record. While Respondent had favorable evaluations and professional development plans up through May 2008, the Superintendent took note of the performance concerns over the last two school years. He reasonably considered the mid-stream performance evaluations that were being attempted under the Return to Documentation process at both Wakeland Elementary and Rogers Garden, both of which were thwarted by Respondent's absences for the remainder of each school year. The Superintendent also took note of two written disciplinary reprimands issued to Respondent, one in December 2008 at Wakeland Elementary and the next in January 2010 at Rogers Garden. The Superintendent also reasonably considered Respondent's history of absenteeism as far back as records were available, beginning in the 1993-1994 school year after Respondent had been teaching for three years. Many of these years reflect substantially more than the amount of paid leave time Respondent could have been entitled to, even if she had taken no paid leave whatsoever during her first three years of employment. For example, in school year 1999-2000, Respondent used more than twice the number of sick leave days than she accrued that year. She did not have sufficient sick leave days accrued from prior years, because she was docked for two days' pay. Again in the very next year, Respondent took more days off than she was entitled to and was docked for another four days of pay. This pattern continued with Respondent's pay docked for excess absences beyond authorized paid leave in 2001-2002, 2003-2004, 2006-2007, and every year since then. The magnitude of Respondent's absences in prior years pales in comparison to the 2009-2010 school year. Indeed, the testimony of several witnesses with many years of experience handling these types of matters, including Superintendent McGonegal, was that Respondent's absences greatly exceeded most anything they had ever seen before. The absences were described as "at the top" in terms of excessiveness. Respondent attempted to establish that she was being singled out for harsher treatment than others who had also been absent a lot. However, no credible evidence was presented of any incidents of absenteeism that were sufficiently similar to Respondent's to be considered comparable. That the School Board may have taken no disciplinary action against employees who took more than ten days of sick leave in a single school year, fails to establish any inequity in the proposed treatment of Respondent here. Respondent's 2009-2010 absences are of a magnitude that is nearly ten-fold more than the attempted comparison. The fact remains that Respondent's 2009-2010 absences, even if all authorized legitimately (as was found not to be the case), easily meet or exceed any reasonable definition of excessive. No similar case was shown to exist. The Superintendent also reasonably considered the progressive discipline approach apparently incorporated into the Collective Bargaining Agreement (CBA) between the School Board and MEA. The Superintendent explained that the progressive discipline policy, while preferred, is not required as a lock-step approach in every case. If the idea of progressive discipline is to allow an employee to conform their conduct before receiving harsher consequences, that would not have worked here, since most of Respondent's absences were supposedly due to legitimate medical issues. If Respondent was truly unable to come to work, warning her that she may be terminated if she continued to be absent, would not change her inability to come to work. In addition, Respondent made it impossible to address concerns about her mounting absences in performance evaluations because Respondent kept calling in sick when her performance evaluations were scheduled. Finally, the Superintendent reasonably considered and rejected the lesser disciplinary step of suspension without pay, because Respondent had already chosen to be absent without pay. Under these circumstances, the Superintendent reasonably determined that he had the discretion to proceed to termination within the parameters of the progressive discipline policy. No evidence was presented to establish any different requirement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Manatee County School Board, enter a Final Order terminating Respondent, Brook Rainville's, employment. DONE AND ENTERED this 28th day of October, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 28th day of October, 2010.
The Issue Whether the petitioner is entitled to an award under section 57.111, Florida Statutes, of attorney’s fees and costs incurred in the appellate matter Witmer v. Department of Business and Professional Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994), and, if so, the amount of such award.
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: The Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is the state agency responsible for issuing occupational licenses to veterinarians with access to the backside of a racetrack and for regulating such licensees. Sections 550.10(1)(b) and .105(2)(d)2, Florida Statutes. Dr. Witmer has been licensed to practice veterinary medicine in Florida since January 1, 1993, and, as of October 19, 1993, he was authorized to practice veterinary medicine at Florida racetracks by virtue of a pari-mutuel wagering occupational license (“license”) issued by the Department. He has been domiciled in Florida at all times material to this matter. On October 19, 1993, Dr. Witmer was a partner in a professional practice in veterinary medicine with its principal office at 1450 Southwest Third Street, Pompano Park, Broward County, Florida. His professional practice had three full-time employees and a net worth, including both personal and business investments, of less than $2 million. In the Administrative Complaint and Emergency Order of Suspension dated October 19, 1993, the Department took two actions with respect to Dr. Witmer’s license.1 First, in the administrative complaint, it put Dr. Witmer on notice that the Department had initiated a disciplinary action against him, charging him with violations of a statute and a rule governing his license which, if proven, would justify the imposition of penalties, including revocation or suspension of his license. Secondly, in the emergency order of suspension, it summarily suspended Dr. Witmer’s license. Dr. Witmer requested a formal administrative hearing pursuant to section 120.57(1), Florida Statutes, to challenge the truth of the allegations contained in the administrative complaint. The request was forwarded to the Division of Administrative Hearings and assigned DOAH Case Number 93-6638. That action was pending at the time Dr. Witmer filed the application for attorney’s fees and costs at issue in this proceeding. Underlying proceeding On the basis of the allegations contained in the administrative complaint and its determination that Dr. Witmer’s interest in his license was “far outweighed by the immediate danger to the public health and safety and to the integrity of harness racing in the State of Florida,” the Department suspended Dr. Witmer’s pari-mutuel wagering occupational license as of October 19, 1993, ordered him to cease and desist from all activities authorized by the license, and barred him from entering any pari-mutuel establishment as a patron for the duration of the emergency suspension. Dr. Witmer chose to seek immediate judicial review of the emergency order pursuant to sections 120.60(8) and 120.54(9)(a)3, Florida Statutes (1993). It is this appellate proceeding which is the proceeding underlying Dr. Witmer’s application for attorney’s fees and costs at issue herein. State agencies are authorized by section 120.60(8), Florida Statutes (1995) to immediately suspend a license under the following circumstances and subject to the following conditions: If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(9) on agencies making emergency rules. Summary suspension, restriction, or limitation may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon. Section 120.54(9)(a), Florida Statutes, provides in pertinent part: If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that: * * * 3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. . . . The agency’s findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable. On February 2, 1994, the District Court of Appeal for the Fourth District of Florida issued its opinion in Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Case Number 93-3232, reported at 631 So. 2d 338. The court quashed the Emergency Order of Suspension, concluding that the order was “facially inadequate,” and ruling that “the Department’s findings of immediate danger to the public welfare are not supported by specific facts and reasons as required by 120.54(9)(a)3, Florida Statutes.” Id. at 340, 343. The district court in Witmer observed that its review was limited to a determination of whether the order complied with the requirements of section 120.54(9)(a)3 and based its analysis upon the following rules of law: If the facts alleged in the complaint and [emergency] order are sufficient to demonstrate immediacy, necessity and fairness, no hearing is required prior to the emergency suspension. . . . The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public. (Citation omitted.) Where, as here, no hearing was held prior to the entry of the emergency order, every element necessary to its validity must appear on the face of the order. (Citation omitted.) The order must be “factually explicit and persuasive concerning the existence of a genuine emergency.” (Citation omitted.) Witmer, 631 So. 2d at 341. In reaching its conclusion that the emergency order was facially inadequate, the court in Witmer held that the Department failed to allege facts in the complaint and order to establish the essential elements of the violations upon which the emergency suspension was based. Firstly, the court found that the charge in the emergency order that Dr. Witmer had failed to report gratuities was not supported by any allegations of fact in the complaint and order. Id. at 341. Secondly, the court found that the Department failed to allege that Dr. Witmer’s actions related to horse racing or to race horses, an essential element of a violation of section 550.235(2), Florida Statutes, and of rule 61D-1.002(10), Florida Administrative Code. Id. at 342. Thirdly, the court found that the Department failed to allege that Dr. Witmer reached an agreement with a second person to commit the violation, an essential element of any conspiracy, including one to violate section 550.235(2) and rule 61D-1.002(10). Id. Finally, the court concluded that the public harm alleged by the Department in the order was too attenuated to support the emergency suspension of Dr. Witmer’s license. Id. at 343. The district court issued its mandate to the Department on February 18, 1994, directing it to act in accordance with the opinion quashing the Emergency Order of Suspension. The Department did not seek review of the decision of the district court in the Florida Supreme Court. Consequently, the decision of the district court had the effect of nullifying the emergency suspension of Dr. Witmer’s license. Summary Dr. Witmer was a small business party, as that term is defined for purposes of section 57.111, at the time the Department entered the emergency order.2 The evidence is sufficient to establish that the Department initiated an action against Dr. Witmer when it entered an Emergency Order of Suspension. This order was issued under the authority granted state agencies in section 120.60(8), Florida Statutes. The order had the effect of immediately and summarily suspending Dr. Witmer’s pari-mutuel wagering occupational license. Dr. Witmer had the right to seek immediate judicial review of the emergency order pursuant to section 120.54(9)(a)3. The appellate court quashed the emergency order because it was legally insufficient to support the suspension of Dr. Witmer’s license under the standards of section 120.54(9)(a)3. The Department did not appeal or seek further review of the appellate court’s decision. Dr. Witmer, therefore, prevailed in the administrative proceeding initiated by the Department. The Department presented no evidence to establish that its action in ordering the emergency suspension of Dr. Witmer’s license had a reasonable basis in law and fact or that any special circumstances exist which would make an award of attorney’s fees and costs in this case unjust.3 The monetary value of the attorney’s fees rendered in connection with the appellate proceeding culminating in the decision quashing the Emergency Order of Suspension is $9,715.00, and the costs incurred total $250. These fees and costs are reasonable and were necessary to prosecute the appellate proceeding.4
The Issue The issue in this case is whether the Respondent, the Department of Insurance, should pay reasonable attorney fees and costs to Crudele under Section 57.111, Florida Statutes (1997), the Florida Equal Access to Justice Act, after Crudele appealed and reversed the Department's Emergency Order of Suspension.
Findings Of Fact On July 15, 1996, the Department issued an Emergency Order of Suspension of Crudele's eligibility for licensure and license as a Florida life insurance agent and life and health insurance agent. The Emergency Order of Suspension was based on alleged violations of the insurance code in connection with the surrender of insurance annuities for purchase of a startup company's unsecured promissory notes. It stated: Based on the foregoing specific facts and for the reasons of protecting the insurance-buying public and insurers from further harm, preventing further abuses of fiduciary relationships, and preventing further defrauding of insureds and insurance companies by the [Petitioner], the Insurance Commissioner finds that [Crudele] constitutes and is an immediate and serious danger to public health, safety, or welfare necessitating and justifying the Emergency Suspension of all licenses and eligibility for licensure and registrations heretofore issued to [Crudele] under the purview of the Department of Insurance. The danger, more specifically, is to the insurance-buying public which must place its trust in the honesty and competence of insurance agents. The trust involves the responsibility that insurance agents have for fiduciary funds accepted by them and insurance matters entrusted to them. The danger is clear and present that failure to properly handle such funds and matters may cause serious losses and damage to the insurance-buying public. Prior to issuance of the Emergency Order of Suspension, the Department received two verified complaints--one by the alleged victim, and the other by her adult daughter. The complaints alleged essentially: Crudele was introduced to Mary Clem, an 84 year-old widow of a tenant farmer, by Charles Perks, Clem's insurance agent, in 1992. In 1992, Crudele and Perks solicited and sold Clem two annuities for a total of $50,000, representing Clem's life savings from working in sick people's homes as a nurses aide. A year after selling the annuities, Crudele and Perks returned to Clem and convinced her to invest the money she had in her annuities into a new company called Zuma that was to recycle automobile tires into useful products. Crudele and Perks represented that Zuma was a "sure fire business." They said they were offering Clem the opportunity to get "in on the ground floor" and that the stock would then go on the open market and double in value. Clem did not have a great deal of education and had no experience investing in stocks or bonds. Her sole source of income was Social Security plus her modest savings. She conceded that when she was offered a 12% interest rate, she found the offer too irresistible to refuse. Neither Crudele nor Perks gave Clem a prospectus or any other descriptive brochure about Zuma. Clem purchased a total of three Zuma promissory notes at three separate times for a total of $60,000. This represented the bulk of her retirement savings. Clem acted based on her trust and confidence in Crudele and Perks. Clem later went to a lawyer to draft a will. The lawyer became very concerned about Clem's purchases of the Zuma promissory notes and her inability to understand the nature of the transaction. Clem was not getting any of her payments from Zuma as promised. Clem was "going out of her mind" with worry. She summoned her daughter, Roberta Anderson, to come down to Florida from Indiana to investigate the matter. Anderson was unable to contact Crudele, and he did not contact her. Anderson and Clem were not aware of any efforts on Crudele's part to recover the funds or otherwise remedy the situation. After a great deal of effort, Anderson was able to recover approximately $23,000 of her mother's money. Crudele apparently played no part in helping Anderson recover the $23,000. The Zuma notes went into default, and apparently the remainder of the money was lost. Clem suffered a very serious financial loss that, given her circumstances, she could ill afford. It may be inferred from the evidence that the Department based its Emergency Order of Suspension on the Clem and Anderson verified complaints. There was no evidence of any other basis for the Emergency Order of Suspension. There was no evidence as to whether the Department conducted any investigation of any kind prior to entry of the Emergency Order of Suspension. Nor is there any evidence as to the Department's decision-making process. The Emergency Order of Suspension stated: (1) that it was being issued pursuant to "sections 120.59(3) [and] 120.60(8) [now Section 120.60(6), Florida Statutes (1997)], Florida Statutes [1995]; (2) that Crudele had "the right to request a hearing in accordance with the provisions of Section 120.59(4), Florida Statutes [1995]"; and (3) that Crudele "was entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes [1995], and Rule 9.110, Florida Rules of Appellate Procedure." The Emergency Order of Suspension also stated that an Administrative Complaint seeking final disciplinary action would be filed within 20 days. On July 15, 1996, the Department filed an Administrative Complaint on essentially the same allegations as those in the Emergency Order of Suspension. Crudele sought judicial review of the Emergency Order of Suspension in the District Court of Appeal, First District. On August 19, 1997, the court issued an Opinion reversing the Emergency Order of Suspension because it did not "set forth particularized facts which demonstrate sufficient immediacy or likelihood of continuing harm to the public health, safety, and welfare to support a suspension of his license without notice and hearing." The court's Mandate issued on September 4, 1997; it referred to the court's Opinion and commanded that "further proceedings, if required, be had in accordance with said opinion, the rules of Court, and the laws of the State of Florida." The Administrative Complaint filed against Crudele was given Division of Administrative Hearings (DOAH) Case No. 97-2603. On February 17, 1998, a Final Order sustaining some of the charges and suspending Crudele's license and eligibility for licensure for six months was entered in Case No. 97-2603.
Findings Of Fact Mitchell is a highway construction contractor with its principal place of business located in Tallahassee, Florida. FDOT is the agency of the state of Florida which is responsible for the construction and maintenance of the roads designated as part of the State Highway System. On July 15, 1994, the parties entered into Contract No. 18,784 (contract) which required Mitchell to resurface the existing roadway, construct four (4) foot wide paved shoulders and perform other related work for $626,347.44 in State Project No. 59100-3512 (project) in Wakulla County, Florida. The contract incorporated by reference special provisions attached thereto and FDOT's Standard Specifications for Road and Bridge Construction (1991) (Standard Specifications). The contract required Mitchell to complete the project within 84 calendar days. Construction began on August 31, 1994, which was contract day one (1). In order to construct and pave the shoulders, Mitchell had to remove the top soil and stabilize the subgrade. After removing the top soil, Mitchell hauled borrow material to the project site. Mitchell spread the borrow along the roadside and mixed it with the existing sub-soil. Mitchell then attempted to attain a certain required density by compacting the shoulders. Mitchell hauled borrow to the project site from October 5, 1994, through October 8, 1994, and on October 13, 1994. Mitchell rolled the surface of the shoulders on October 18, and 20-22, 1994. The contractor was unable compact the subgrade to the required density. On or about October 22, 1994, FDOT refused to pay Mitchell for additional material to reestablish grade on the shoulders. From approximately October 24, 1994, through November 11, 1994, Mitchell remixed and compressed the subgrade soil in an unsuccessful attempt to stabilize the shoulders. From October 25, 1994, through November 7, 1994, Mitchell wrote at least four (4) letters to FDOT discussing the problems at the project site in achieving required density and stabilization of the subgrade on the shoulders. These letters are not a part of the record in this case. However, the hearing transcript from February 15, 1995, clearly shows Mitchell's position: (1) Plastic materials beneath the subgrade (unexpected conditions not contemplated under the contract) were causing a delay on the project and preventing Mitchell from achieving the required density and stabilization of the subgrade; (2) Mitchell would have to excavate the plastic material and haul in additional borrow to reestablish the grade of the shoulders before stabilization could be obtained; (3) Mitchell needed an extension of time in which to complete the project; and (4) Mitchell wanted FDOT to pay for the expenses (not covered under the contract) that Mitchell would incur in curing the problem. On or about November 11, 1994, Mitchell informed FDOT in writing that Mitchell was suspending work on the project. Mitchell suspended work without obtaining FDOT's approval as required by the contract. By letter dated November 14, 1994, FDOT responded to Mitchell's four (4) letters. FDOT's letter did not specifically deny each of Mitchell's requests but made it clear that Mitchell's claims were unsubstantiated. FDOT took the position that Mitchell created the problems with compaction by failing to follow FDOT procedures: (1) Prior to hauling in stabilizing material, Mitchell did not submit a sample of the existing on-site material so that a lime rock bearing ratio (LBR) could be established to determine how much, if any, stabilizing material would be needed to obtain the required LBR; (2) Mitchell did not submit samples or get FDOT's approval of the material used for stabilization before spreading and mixing it on the project site; (3) Mitchell did not sufficiently mix the material used for stabilization so that density could be obtained; (4) Soil samples of the material beneath the area being stabilized, to a depth of approximately three and one half feet, indicated that it was suitable for compaction; (5) The sources of borrow material used in attempting to stabilize the subgrade were not approved as required by the contract; (6) Mitchell added unapproved material, in excess of what was required, to the borrow material hauled to the project site. FDOT wrote this November 14, 1994, letter after investigating the problem and performing certain field and laboratory soil tests. On December 12, 1994, Stephen Benak, District Construction Engineer for FDOT, made a visit to the project site to conduct further investigation. Later that day the parties had a meeting. Mitchell again explained to FDOT that unexpected conditions at the job site were causing problems and preventing the contractor from obtaining density requirements on the subgrade. FDOT again informed Mitchell: (1) The unapproved borrow material that Mitchell previously hauled to the project site was unsuitable and causing the problem; and (2) Mitchell's proposal to under-cut (excavate and haul more borrow material) was a drastic cure and not compensable under the contract. Mitchell did not immediately return to work on the project. With credit for twenty-four (24) rain days, the contract performance time increased to 108 calendar days. Taking the rain days and intervening holidays into consideration, FDOT determined that the contract term expired on December 20, 1994. Mitchell did not return to work at the project site until December 23, 1994. By letter dated December 29, 1994, FDOT gave Mitchell notice of the agency's intent to declare Mitchell delinquent on the project and to suspend its Certificate of Qualification and that of all its subsidiaries. This letter states that Mitchell was making unsatisfactory progress on the contract because the contract time had expired and the work was not complete. The letter refers to section 8-8.2 of FDOT's Standard Specifications and Rule 14- 23, Florida Administrative Code. On January 12, 1995, Mitchell filed a Request for Formal Hearing without making an additional request for extension of contract time. This petition states: Mitchell Brothers has filed timely requests for extension of contract time due to the delays resulting from the lack of constructability and differing site conditions of the project. Therefore, the Department's issuance of the notice of delinquency is invalid. After receiving Mitchell's request for hearing, FDOT designated Tom Kinsella, Esquire, as counsel for the agency. By letter dated January 23, 1995, Mr. Kinsella referred Mitchell's request for a hearing to DOAH. The Hearing Officer issued a Notice of Hearing on January 27, 1995, setting this matter for hearing in DOAH Case No. 95-289 on February 8, 1995. In order to allow the parties sufficient time for discovery, the Hearing Officer subsequently rescheduled the case for hearing on February 15 and 16, 1995. The parties took depositions every day from February 2, 1995, to February 13, 1995. Bill Carpenter, FDOT's Project Engineer on the project at issue here, was the first deponent. Prior to Mr. Carpenter's deposition, Mr. Kinsella inquired as to whether there were any outstanding time requests. Mr. Carpenter assured Mr. Kinsella that FDOT had addressed and denied all outstanding time requests in FDOT's letter dated November 14, 1995. At the formal hearing in DOAH Case No. 95-289 on February 15, 1995, Mr. Benak testified on FDOT's behalf. On direct examination, Mr. Benak testified that Mitchell made no "proper" requests for contract time extensions. During cross-examination, Mitchell questioned Mr. Benak concerning Mitchell's letters written between October 25, 1994, and November 7, 1994. Initially, Mr. Benak testified that Mitchell's letters were not "formal" requests for extension of contract time. The Hearing Officer ruled that two of these letters contained preliminary requests for extension of contract time. Mr. Benak subsequently questioned whether Mitchell's letters were timely pursuant to section 8-7.3.2, Standard Specifications. Without resolving the issue of timeliness, Mr. Benak conceded that the delay was on-going and that the agency had never written to Mitchell requesting more specific information about the delay, i.e. all documentation of the delay and a request for the exact number of days justified to be added to the contract time. Therefore Mitchell was never required to submit a more formal request for contract time extensions. However, Mr. Benak never conceded that Mitchell's preliminary requests were pending at the time the agency issued its notice of intent to declare Mitchell delinquent or that the agency failed to follow its own procedures before issuing that notice. Mr. Benak maintained that the contract did not provide for extensions of contract time for delays due to the fault or negligence of the contractor. He testified that FDOT's letter dated November 14, 1994, effectively denied Mitchell's pending preliminary requests for time extensions and informed Mitchell that the delay was due to the contractor's fault or negligence. Accordingly, FDOT was not required to solicit further information from Mitchell before issuing the December 29, 1994, delinquency letter. As the hearing on February 15, 1995, progressed, it became apparent that the parties disputed a variety issues involving mixed question of fact and law. In ruling on an objection which is not at issue here, the Hearing Officer stated: * * It seems to me the more pertinent, you know, a much more pertinent area -- and we haven't addressed this in terms of the Department's procedures, that would start a request for extension of time, and it appears that the Department has never acted on that. And you've raised a very interesting matter, and that is under the rules, apparently if that process has been initiated, you can't go to delinquency, which means that this activity, this that they've tried to initiate, lacks the appropriate legal predicate. That's a good point. After the hearing in DOAH Case No. 95-289 recessed on February 15, 1995, Mr. Kinsella advised Mitchell's counsel that FDOT would withdraw the delinquency. Mr. Kinsella wanted to alert Mitchell that it was unnecessary for witnesses to attend the hearing the next day. When the hearing resumed on February 16, 1995, FDOT filed its Notice of Withdrawal of Notice of Delinquency and Motion for Relinquishment and Remand of Jurisdiction. The motion states, "The Department is now withdrawing it (sic) notice of intent to declare delinquincy without prejudice, it appearing that all of Mitchell Brothers, Inc., requests for additional time may not have been addressed by the Department." However, competent persuasive record evidence indicates that FDOT made this determination based on the Hearing Officer's prior rulings and statements during the hearing on February 15, 1995. Mr. Kinsella stated on the record: * * After the conclusion of the hearing yesterday on the basis of the matters that came up in terms of whether the preliminary requests for time extensions have been properly met by the Department and evaluated and addressed in the correspondence as pointed out by the Court, we went back and evaluated, and determined that we don't believe those have been fairly met and addressed by the Department, and that this delinquency was premature for that reason. Counsel for Mitchell did not object to the motion to relinquish jurisdiction but requested an opportunity to submit a proposed order. The Hearing Officer stated that Mitchell could file a motion to submit a proposed order and that FDOT would have an opportunity to respond to that motion. The Hearing Officer did not set a date certain for the filing of the posthearing motion but Mitchell's counsel stated that the motion would be filed in a very brief time, within a day or two. February 16, 1995, was a Thursday. The following Monday, February 20, 1995, Mitchell filed a Motion to Permit Submittal of Proposed Findings and for Entry of a Recommended Order, a proposed recommended order for the Hearing Officer's signature, and a Motion for Attorney's Fees. DOAH's Clerk docketed Mitchell's motion to submit proposed findings and the proposed recommended order in DOAH Case No. 95-289. The Clerk docketed Mitchell's motion for attorney's fees under DOAH Case No. 95-1096F. That same day, the Hearing Officer entered an Order Closing File which did not retain jurisdiction over any issue in DOAH Case No. 95-289. Subsequent relevant pleadings and procedures arising in the instant case between February 20, 1995, and June 14, 1995, are set forth above in the Preliminary Statement and incorporated herein. The record indicates that the parties were at an impasse when Mitchell suspended work on the project on or about November 11, 1994. After FDOT's November 14, 1994, letter and the meeting on December 12, 1994, the parties certainly were aware of each other's positions, and were deadlocked as to the reason for the delay in stabilizing the subgrade. The dispute between them involved multiple questions of fact and law which are not at issue here. FDOT's December 29, 1994, delinquency letter gave Mitchell what it was entitled to, i.e., a point-of-entry to challenge, in an administrative proceeding, FDOT's position that Mitchell created the conditions causing the delay in stabilizing the subgrade. FDOT had a reasonably clear legal justification for issuing that letter based on sections 8-7.3.2 and 8-8.2 of FDOT's Standard Specifications and Rule 14-23, Florida Administrative Code. The delinquency letter was not issued and subsequently filed with DOAH for an improper or frivolous purpose. As of February 15, 1995, the 165th calendar day of the project, Mitchell continued to work on the project which was only 36 percent complete and which FDOT had not conditionally accepted. Mitchell has incurred $44,408.50 in attorney's fees and $18,071.13 in cost in litigating DOAH Case No. 95-289 and DOAH Case No. 95-1096F. Mitchell is also obligated to pay $1,045.00 to Carolyn Raepple, Esquire, who testified concerning the reasonableness of the fees and costs that Mitchell incurred in DOAH Case Nos. 95-289 and 95-1096F. FDOT has presented no evidence to rebut the reasonableness of these fees and costs.
The Issue Whether or not Petitioner, pursuant to Rule 6C-770 F.A.C., abandoned her position as a Secretary Specialist, thereby resigning from Florida State University by being absent without leave for three consecutive days.
Findings Of Fact At all times material, Petitioner, Teresa Loewy, was employed as a Secretary Specialist in the Department of Educational Leadership at Florida State University (FSU). On October 22, 1989, Petitioner Loewy reported that she had suffered a head injury as a result of an on-the-job accident. That same day, she was seen at Tallahassee Memorial Regional Medical Center and released. On October 23, 1987, FSU placed Petitioner on administrative leave for 40 hours. Contact was made by Petitioner and her husband, Mr. Samuel Loewy, with Dr. David Leslie, Department Chairman, with Nina Mingledorff, Department Staff Assistant and Petitioner's immediate supervisor, and with Motney Gray, FSU Workers' Compensation Supervisor. The Loewys were informed that a worker's compensation report had been completed and forwarded by the Department to Ms. Gray. This is the first formal step in an employer acknowledging that workers' compensation or medical benefits may be due a worker pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law." By letter dated November 3, mailed November 5, and received by Petitioner on November 10, 1987, Chairman Leslie informed Petitioner in pertinent part as follows: As you may be aware, you have been on disability leave for a 40 hour work period. Beyond that limit, this office will not certify any additional leave for you unless we receive medical proof that you are unable to return to work. Although you may apply for workers' compensation, I believe that similar proof will be required by that office. Absent any further communication from you and absent proof to the contrary, we assume that you are capable of returning to work and have elected not to do so (R-3). By letter of November 5, 1987, (R-9) Motney Gray notified Petitioner that Ms. Gray's communications with Joe D. Rawlings, M.D. had convinced Ms. Gray that Petitioner was not still impaired and was able to work and that Ms. Gray was terminating workers' compensation medical benefits and Petitioner's disability leave as of that date. By letter dated November 12 and received November 13, 1987, Robert L. Lathrop, Dean of the College, informed Petitioner as follows: Based on Motney Gray's letter of November 5, to you, we are hereby notifying you as of 8:00 a.m. November 6, you have been on unauthorized leave. Because of your unauthorized leave of absence, I am writing this letter to determine your intentions concerning continued employment at Florida State University. You must report for work immediately, or provide your supervisor, Mrs. Nina Mingledorff, with appropriate medical certification by 4:30 p.m., Monday, November 16, or it will be assumed you have voluntarily resigned due to abandonment of your position. (R-1) In response, on November 16, 1987, Mr. Loewy, on behalf of his wife, delivered to the Department a handwritten note from Dr. Rawlings, (R-2) which read: To whom it may concern: Mrs. Teresa Loewy is still under my care for headaches dating back to her injury on 10-22-87. At that point in time, Dr. Rawlings could be accurately characterized as Petitioner's primary treating physician pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law". Copies of this letter were seen by Nina Mingledorff and by Annette Roberts, FSU Employee Labor Relations Coordinator. On November 17, 1987, Petitioner and Mr. Loewy, together with another couple, visited Petitioner's workplace. Their purpose was to have Petitioner physically on the employment premises to demonstrate that Petitioner was unable to work due to her injury. At that time, the Loewy faction spoke with Annette Roberts, with John Goldinger, Assistant Personnel Director, and with Dean Lathrop. Initially, Petitioner was given a termination letter prepared for the Dean's signature, based upon Petitioner's three consecutive days' absence without prior authorization, which letter was as yet unsigned. However, as a result of the Loewy faction's face-to-face interview with Dean Lathrop, a new memorandum was prepared and actually signed by the Dean. This second communication was addressed to John Goldinger and read as follows: I am hereby authorizing leave of absence for Ms. Teresa A. Loewy beginning November 16, 1987, at 3:00 p.m. and ending no later than 10:00 a.m. on November 20, 1987. The purpose of this leave is to provide time for Mrs. Loewy to secure medical certification that she is unable to drive herself to work. (R-4) The effect of this memorandum, signed by Dean Lathrop and handed to Petitioner, was to supersede his other unsigned/unconsummated correspondence attempting to terminate her under the three days' absence rule. On November 20, 1987, Mr. Loewy obtained a two page letter from Dr. Rawlings (R-6) dated the preceding day. That letter, which Mr. Loewy was unable to pick up at Dr. Rawlings' office in Thomasville, Georgia, until shortly after the 10:00 a.m. November 20 deadline established by Dean Lathrop's November 17 signed memorandum, may be summarized as follows: Dr. Florek, a board certified neurologist had diagnosed Petitioner as having post-concussive syndrome on October 29, 1987. Sometime between November 3 and 6, Dr. Bridges, an opthomologist had diagnosed her eye examination as "essentially within normal limits". With the concurrence of FSU's Motney Gray, Petitioner was scheduled for an MMPI (a psychological assessment), the results of which had not yet been received on the date of Dr. Rawlings' letter, November 19, 1987. She was also scheduled for an MRI (magnetic resonance imaging, a type of x-ray particularly helpful in determining head and soft tissue injuries) which was scheduled for November 24, 1987. Dr. Rawlings confirmed that the Petitioner continued to come to him with the subjective complaints of headaches, blurred vision, and diplopia. The overall tone of his letter is that Dr. Rawlings thought Petitioner could work as of November 19, 1987, although he did not specifically say so. His rather vague summation was, "I have relayed to Mrs. Loewy [on] a number of occasions that I feel this problem will be self limited and that all attempts will be made on my part to not give her any type medication which might be habit forming." (R-6) On his wife's behalf, on November 20, 1987, at approximately 11:30 a.m., Mr. Loewy presented Dr. Rawlings' November 19, 1987 letter in a sealed envelope to Evelyn Ashley, Dean Lathrop's Administrative Assistant, and also gave a copy of it to Nina Mingledorff. Dean Lathrop was not in the workplace that day. During the time he was at Petitioner's workplace on November 20, 1987, Mrs. Ashley presented Mr. Loewy with a request form for a leave of absence without pay. She and others emphasized to him that the completed form must specify a date the Petitioner could return to work, a fact clearly in contention at that point. He was requested to have Petitioner complete the form and return it. He was not told how long Mrs. Loewy would have in which to complete and return the form. From this point forward the testimony is in sharp conflict. It is debatable whether Mr. Loewy was concerned about the effect such a "form" request might have upon his wife's job status or her incipient workers' compensation claim, whether he merely felt she was entitled to leave with pay, or whether he was ever told he could sign the form for his wife. It is clear, however, that Mr. Loewy refused to complete the form on Petitioner's behalf and also refused to take it to her unless he could add a notation to the form that her job would not be jeopardized by requesting such voluntary leave. Having assessed the candor and demeanor of the respective witnesses and the internal and external credibility and consistency or lack thereof of their respective versions of the events and conversations of November 20, 1987, it is found that FSU personnel refused to permit any additions or deletions to the form. They also refused to permit Mr. Loewy to submit a separate explanatory note with regard to the Loewys' position on the subject, even though it was John Goldinger's view at the time of formal hearing that it had always been normal FSU procedure to permit attachments and addendums to other requests for leave without pay. The standard forms requesting leave without pay which were presented by FSU employees to Mr. Loewy therefore were never given to Petitioner, completed by her, or submitted by the Petitioner to the University, although Mr. Loewy was repeatedly told that Petitioner's job would not be held for her unless the forms were filled out and submitted. Dr. Rawlings' November 19 letter (R-6) was not transmitted by his subordinates to Dean Lathrop at or near the time Mr. Loewy submitted it to them. Neither did Chairman Leslie contemporaneously see Exhibit R-6. According to Dr. Leslie, no one below his administrative level had the authority to determine the sufficiency of that "excuse" and the appropriate person to have decided that issue would have been Dean Lathrop. Annette Roberts and John Goldinger agreed that leave requests often went through Dean Lathrop. Although the Dean might not vary duly promulgated rules, the evidence as a whole, including Dean Lathrop's prior informal extension of Petitioner's leave, supports Annette Roberts' assertion that Dean Lathrop had the discretion to either effect the abandonment or increase the grace/leave period he had previously granted Petitioner. Thereafter, Petitioner never did return to work. On Wednesday, November 25, 1987, Dean Lathrop, unaware of the contents of the November 19 letter from Dr. Rawlings, and therefore never having decided on its sufficiency or lack thereof, prepared the following termination letter to Petitioner: You have been absent without leave of absence for 3 or more consecutive workdays . . . [Rule 6C-5.770(2)(a) is quoted] . . . Based on the above stated rule, you are deemed to have resigned from your position. . . effective this date, November 25, 1987 at 10:00 a.m. (R-10) Bracketed material and emphasis provided] It is clear from the foregoing, that regardless of Petitioner's not having submitted any leave without pay request forms, and regardless of Petitioner's nebulous status as to leave after her initial 40 hours disability leave (See Findings of Fact 4-9 supra), Dean Lathrop counted toward implementation of the three days' abandonment rule only the three consecutive "working days" (presumably 24 work hours) elapsing after his own ultimatum time and date of 10:00 a.m., November 20. The Dean's reasoning, as explained by him at formal hearing, was that the Petitioner had not requested a leave of absence. Evelyn Ashley stated that she had told Dean Lathrop both that the doctor's letter (R-6) had been submitted and also that the Dean could do nothing about processing leave for Mrs. Loewy because R-6 had to be attached to a "request for leave form" and that "form" had not been submitted by the Petitioner. Dean Lathrop testified that if he had seen R-6 and still had any doubts of its sufficiency, he probably would have approved leave on the same basis as he had on November 17, at least until he had the opportunity to consult medical personnel further. It was never determined by FSU personnel prior to formal hearing whether the December 19 communication from Dr. Rawlings (R-6) was sufficient under the terms of the Dean's November 17 memorandum granting further leave up to 10:00 a.m., November 20, 1987. As of Friday, November 20, 1987, Petitioner had only 1.7 hours annual leave and 3.5 hours sick leave status to draw upon. After her separation date, Petitioner was paid for 1.7 hours of accrued annual leave; she was not paid for any accumulated sick leave. Subsequently, Petitioner and FSU became embroiled in workers' compensation litigation and entered into a "Stipulation and Joint Petition" which was adopted and approved by an Order of the Deputy Commissioner dated August 8, 1988. (P-3) 1/ Admitted facts found therefrom which are relevant, material, and significant to the instant cause and which are not cumulative to any of the facts found supra, are as follows: . . . She [Petitioner] was scheduled for an MMPI which was done on November 20, 1987. An MRI scan of the brain was done November 23, 1987 and was interpreted as normal. . . . Dr. Bridges examined the Employee [Petitioner herein] on 11/3/87 and found irregular visual fields, more constricted in the right eye, but otherwise normal examination. The employee was then seen by Dr. Thomas J. Perkins who diagnosed occipital syndrome on the right side and recommended treatment by Dr. Seay. . . . The employer/carrier and employee/claimant stipulate and agree that the maximum medical improvement date is April 25, 1988, pursuant to the medical report of Dr. James T. Willis. [Bracketted material provided] It is clear on the record that Motney Gray, FSU's Coordinator for Insurance Risk, informed Dr. Rawlings on several occasions that it was "possible" that workers' compensation would pay for another employee to transport Petitioner from her home in Thomasville, Georgia, to work at FSU in Tallahassee, Florida, but it is not clear that this offer was ever made any more concrete than as a "possibility", and the offer apparently was never made directly to the Petitioner by any representative of FSU. It is clear that, at some point, Dr. Rawlings conveyed this offer to the Petitioner, but it is not clear on the record that this information ever reached Petitioner at any time prior to November 25, 1987 and simultaneously with a period she also was not taking a drug prescribed by some physician. Petitioner was treated, not just by Dr. Rawlings, but by Doctors Florek, Bridges, Seay, Willis, Hogan, and Perkins. At some point in time, Dr. Willis, a chiropractic physician, became Petitioner's primary treating physician. Moreover, it is clear that Dean Lathrop, who was Petitioner's only superior with authority to determine the sufficiency of the letter of certification (R-6), was concerned about Petitioner's ability or inability to drive herself, not whether someone else could or would drive her to work. In addition to the oral communications to Mr. Loewy on November 20, FSU had directly advised Petitioner concerning the general nature of its abandonment rule and of FSU's requirements for prior approval of all leave requests, first by circulating standard informational documents to all employees, and secondly, by its various letters to Petitioner which are described supra. The parties stipulated that in the event abandonment was not proven, any back wages awarded to Petitioner should be subject to all appropriate class pay increases, and should be reduced by the workers' compensation and unemployment compensation already paid to Petitioner, and should be further reduced by any income earned by her.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered: Finding Petitioner has not abandoned her position. Reinstating Petitioner to her position. Ordering payment of backpay and emoluments from November 25, 1987, less unemployment and workers compensation paid by Respondent and less mitigation earnings of Petitioner, pursuant to the parties' stipulation. Denying any attorney's fees. DONE and ENTERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989.
The Issue Whether Petitioner's medical license should be reinstated.
Findings Of Fact Stipulated Facts By Final Order issued in Case No. 92-011898, filed February 16, 1995, Respondent adopted a consent agreement. The Administrative Complaint in the case charged Petitioner with violations of Subsections 458.331(m)(q) and (t), Florida Statutes. The Final Order placed Petitioner on probation for a period of 3 years under the indirect supervision of another licensed physician, and imposed reporting requirements and review of medical records. The Final Order also required Petitioner to pay a fine of $5,000, to be paid in installments; complete five hours of continuing medical education in risk management and 10 hours of continuing medical education (hereinafter "CME") in pain management prior to February 16, 1996; complete a medical records course offered by the Florida Medical Association (hereinafter "FMA course") and a course on prescription drugs offered by the University of South Florida (hereinafter "USF course") during the first year of probation. Finally, Petitioner was restricted concerning the prescription of Schedule II controlled substances. By correspondence dated February 17, 1995, Petitioner was notified that his first appearance before Respondent's Probation Committee (the Committee) was scheduled for March 16, 1995. Petitioner was reminded that he could not practice medicine until his supervising physician (hereinafter "monitor") was approved. By separate correspondence dated February 17, 1995, Petitioner was provided with brochures for the USF and FMA courses. Petitioner was advised that the USF course fills up quickly. On March 10, 1995, Pauline Gray, M.D., notified the Agency for Health Care Administration (AHCA) that she would serve as Petitioner's monitor. On March 16, 1995, the Committee met. Petitioner advised the Committee that Dr. Gray was ill and unable to attend the meeting, although her appearance was a condition of the Final Order. Petitioner acknowledged that he had been practicing medicine, although his monitor had not been approved; Petitioner further acknowledged receipt of the February 17, 1995 correspondence advising him he could not practice without an approved monitor. Petitioner was advised by the Committee to cease practicing until a monitor was approved. On March 29, 1995, Dr. Gray advised the Department that while she had been ill, she had not stopped practicing, and continued to be willing to serve as Petitioner's monitor. On March 31, 1995, the Department advised Petitioner that his first installment payment on his fine was delinquent. On April 3, 1995, Petitioner advised an AHCA investigator that he did not recall being told to cease practicing, and acknowledged that he had continued to practice after the Committee meeting. Petitioner suggested that his need for a hearing aid could cause confusion. On April 6, 1995, the Department acknowledged receipt of Petitioner's sample prescription form for Schedule II controlled substances, and was again reminded that he could not practice medicine until his monitor was approved. On April 10, 1995, the Department by correspondence again advised Petitioner to cease practice until his monitor was approved; at the request of Respondent, Petitioner was asked to submit an explanatory letter from Dr. Gray concerning her illness and her ability to monitor Petitioner. At the May 18, 1995 meeting of the Committee, Dr. Jeffrey Brooks was approved as Petitioner's monitor. On May 30, 1995, the Board issued its order clarifying the terms of Petitioner's probation, advising that monitor reports were to be made on a quarterly basis. On March 14, 1996, Petitioner was granted an extension of time to complete his CME requirements. On March 20, 1996, Petitioner was provided with sources for the required CME. On March 22 and April 1, 1996, the Department requested immediate submission of three delinquent reports from Petitioner. On April 16, 1996, a Final Order in Case No. 95-13102 was entered. The Administrative Complaint charged that Petitioner practiced medicine without a monitor in violation of the previous Final Order. In this Final Order, Petitioner was placed on six months' suspension, with the suspension stay conditioned on his compliance with the Final Order issued in Case No 92-01898. The Final Order also imposed an additional fine of $1,000.00, due on June 16, 1996, and required Petitioner to successfully complete a laws and rules examination by October 16, 1996. On April 24, 1996, Respondent issued an Order granting Petitioner's request for modification of the terms of the Final Order in Case No. 92-10898. Petitioner was granted an extension of time until October 23, 1996, to complete the risk management and pain management CMEs required, and an extension until December 1, 1996, to complete the USF course. By correspondence dated April 29, 1996, the Department confirmed for Petitioner the new due dates for the CME and USF drug course. On May 10, 1996, the Department requested delinquent reports from Petitioner. On May 16, 1996, Petitioner submitted probationer reports due November 15, 1995, February 15, 1996 and May 15, 1996. Petitioner completed the laws and rules examination on September 19, 1996. As of October 9, 1996, Petitioner had not yet made arrangements to complete the CME and the FMA and USF courses, due October 23, 1996 and December 1, 1996, respectively. In February 1997, Petitioner was notified his November 15, 1996 probationer report was delinquent, and he explained he forgot the report. On March 20, 1997, Petitioner appeared before the Committee and was granted an extension of one year to complete his delinquent CME and the FMA and USF courses. On April 29, 1997, Petitioner was provided brochures for the FMA records and USF drug courses and advised to register immediately. On September 18, 1997, the committee temporarily approved Dr. Stephen Spore to act as Petitioner's new monitor. He was approved on November 13, 1997. On December 6, 1997, Petitioner completed the FMA course. On April 7, 1998, the Department filed a Uniform Complaint with AHCA regarding Petitioner's failure to pay his fine and failure to complete CME. On May 27, 1999, Petitioner completed six hours of CME in risk management. On October 20, 2000, Respondent entered an Order lifting the stay of the suspension imposed in Case No. 95-13102. Petitioner completed the required CME in pain management on October 26, 2000 (1 hour), October 28-29 (9 hours), and November 9-10, 2000 (2 hours). On December 9, 2000, a risk management survey of Petitioner's practice was conducted. On December 19, 2000, Respondent entered a Final Order adopting a consent agreement in Case No. 98-11086.1 Petitioner's license was suspended until the CME in Respondent's prior orders was completed and the risk management review was completed. In addition, Respondent imposed a fine of $2,000.00 and costs in the amount of $696.00, due December 19, 2001. At the time of the March 30 through April 1, 2001 meeting of the Respondent, Petitioner had met all of the requirements for reinstatement specified in the previous Final Orders. Findings of Fact Based on the Evidence of the Record Crystal Griffin was the compliance officer for the Board of Medicine during the period 1992-1998. As compliance officer, Ms. Griffin was responsible for monitoring compliance with disciplinary orders issued by the Board. Ms. Griffin was the compliance officer for Petitioner's probation from the entry of the first Final Order until she resigned in 1998. Upon receiving a disciplinary order, Ms. Griffin sent to the physician an information package which included the due date of every requirement of the Final Order and information explaining how to comply with each requirement. The information package also included brochures for the USF prescribing drug course and the FMA medical records-keeping course. The USF course is given once a year. The FMA course takes four months to complete. Thomas Sweat is a medical malpractice investigator for the Agency for Health Care Administration. In his position, he acts as a probation officer when a medical professional is placed on probation. Mr. Sweat acted in that capacity with regard to Petitioner's probation. Acting as probation officer, Mr. Sweat periodically would interview Petitioner, Petitioner's monitor, and the compliance officer, Ms. Griffin. Mr. Sweat interviewed Petitioner on numerous occasions during which he counseled Petitioner regarding his problems in complying with the terms of his probation. On May 9, 1996, Mr. Sweat interviewed Petitioner at his office. Mr. Sweat advised Petitioner of delinquent probationer reports. Although he had been on probation for over a year, Petitioner stated he was confused about what to include in his reports. Mr. Sweat advised Petitioner to contact Ms. Griffin in that regard. During the May 9, 1996 interview Petitioner admitted he had not made arrangements to complete his required CME and the USF and FMA courses. Even though Ms. Griffin had provided Petitioner the necessary information, he stated that he did not know where to arrange for the courses. On February 4, 1997, Mr. Sweat attempted to interview Petitioner at his office. Upon arrival he found the office closed and vacant with no signs advertising Petitioner's new location. When Petitioner was located, he was admonished that he had violated his terms of probation by relocating his office without notifying the Board. Petitioner had moved his office the previous August. Petitioner stated to Mr. Sweat that it never occurred to him to notify anyone. It is apparent from the testimony presented at hearing that Petitioner either did not understand or did not recall his obligations under various orders issued by the Board. Because of the problems Petitioner had with understanding his obligations of the previous orders of the Board, concerns were raised at the March 30 through April 1, 2001, Board meeting about Petitioner's cognitive thinking and ability to practice medicine safely. The Board voted to deny Petitioner's request for reinstatement and to require him to undergo an evaluation by the CARES program at the University of Florida (UFCARES). The May 3, 2001 Order entered by the Board denying Petitioner's petition for reinstatement and requiring an evaluation by the UFCARES program prior to reinstatement was based on the ground that the Board had concerns regarding Petitioner's ability to safely practice medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Health, Board of Medicine, enter a Final Order denying Petitioner's application for reinstatement until such time that he undergoes the UFCARES program. DONE AND ENTERED this 8th day of October, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2001.
