The Issue The issue is whether Petitioner may lawfully dismiss Respondent from employment for excessive absenteeism.
Findings Of Fact Petitioner initially employed Respondent as a part-time bus aide on December 8, 1987, and subsequently employed him as a full-time bus aide on September 14, 1989. At all material times, Respondent has been covered by the 2006-2009 Successor Contract between Petitioner and the American Federation of State, County, and Municipal Employees, Local 1184, whose term is July 1, 2006, through June 30, 2009 (Contract). The job of the bus aide is to assist special-needs students in boarding and exiting the bus. When an aide fails to notify his supervisor of his absence from work, Petitioner tries to find a substitute bus aide, but often cannot, so the bus driver must assist these students, as well as perform his usual duties of driving the bus. Respondent has had attendance problems for some time prior to the period in question. For example, he incurred 26 days of unauthorized absences from April 2004 through February 2005. These absences resulted in the issuance to Respondent of a memorandum, dated April 13, 2005, warning him that unauthorized absences justified dismissal. The subject period of absenteeism began on November 21, 2006, when Respondent did not appear at work and did not contact his supervisor. Petitioner documented the absence with three hours of sick leave and three hours of unauthorized leave. On November 22, which was the day before Thanksgiving, Respondent did not appear, and Petitioner documented the absence with six hours of unauthorized leave. The following Monday and Tuesday, November 27 and 28, Respondent was again absent without leave. He worked on November 29 and 30, but missed that Friday, December 1, again without leave. Respondent was absent without leave for four days of the next week, all five days of the following week, and all four days of the week after that, at which point winter break started. After winter break, Respondent was absent without leave for the next nine weeks in their entirety. After missing the first two days of the tenth consecutive week, Respondent finally reappeared at work on March 21, 2007. In the meantime, on January 26, 2007, Petitioner's District Director, Office of Professional Standards, wrote Respondent and informed him that Petitioner had deemed him to have abandoned his position due to his extensive absences. The letter gave Respondent ten days to request a review and warned that, if he did not request a review, the School Board would take final action terminating Respondent. On February 21, 2007, Petitioner's District Director, Office of Professional Standards, wrote Respondent and informed him that he would need a clearance to return to work. On March 12, 2007, Petitioner conducted a conference for the record to address Respondent's absenteeism. During the conference, Respondent acknowledged 104.5 absences, including 90.5 unauthorized absences, from March 1, 2006, through February 28, 2007. Respondent's excuses were two deaths in his family and an eviction. After the March 12 conference for the record, Petitioner provided Respondent with a clearance to return to work, even though the matter had not yet been finally resolved. Respondent worked as scheduled for a few days prior to spring break and two days after spring break, following which he was absent without leave for the remaining three days of the first week after spring break and the next two weeks in their entirety. In granting the clearance to return to work, Petitioner did not relieve Respondent from liability for the absences, detailed above, that started on November 21, 2006. Upon Respondent's failure to report to work as scheduled after spring break, Petitioner conducted a duly noticed meeting on May 22, 2007, to discuss pending School Board action to dismiss Respondent. On July 2, 2007, Petitioner advised Respondent that, on July 11, 2007, the School Board would receive the Superintendent's recommendation to dismiss him from employment due to absenteeism. On July 11, the School Board accepted the Superintendent's recommendation, suspended Respondent, and initiated dismissal proceedings against him. Respondent testified at the final hearing, but failed to offer any plausible explanation for the absences in late 2006 and early 2007 that resulted in this case. The deaths in his family in November 2006 and December 2006 were of the grandmother of his brother's wife and the sister of his brother's wife. The eviction occurred in early November 2006. Respondent's dog died from cancer in January 2007. However, Respondent never offered any explanation for why he never even called his supervisor during this extended period of absenteeism. As Respondent testified, the same supervisor had been understanding and supportive when Respondent had required hospitalization in early 2006, and there was no reason to assume that he would not again do what he could reasonably to accommodate Respondent's difficulties. Article XI, Section 4, of the Contract provides: An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination.
Recommendation It is RECOMMENDED that the School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 23rd day of January, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2008. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Michael Spaulding 105 Northwest 58th Terrace Miami, Florida 33127
Findings Of Fact Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987. RECOMMENDED this 18th day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1-2. Accepted and incorporated in Findings of Fact 1. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact. Rejected as contrary to the weight of the evidence. Accepted. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation. 9-12. Irrelevant. 13-17. Rejected as not Finding of Fact. By the Respondent Accepted. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted. 10-13. Irrelevant. Rejected as not a Finding of Fact. Accepted. COPIES FURNISHED: Isidro Garcia, Esquire Florida Rural Legal Services, Inc. 572 S.W. 2nd Street Belle Glade, Florida 33430 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of religion and national origin and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Mr. Lalla is Hindu, and his religion is Hinduism. Mr. Lalla was employed in the County’s Enterprise Technology Services Department (ETSD). ETSD provides information technology (IT) services supporting the operations of other departments in the County. ETSD manages and maintains the IT infrastructure, including computer hardware and software, and the County’s electronic communications network. On January 31, 2005, Mr. Lalla was hired as an Operating Systems Programmer (OSP) in the Enterprise Security Office (ESO) of the County’s ETSD. An OSP is an advanced level technical professional, who may have duties in a number of different infrastructure support areas within ETSD. On December 18, 2007, Mr. Lalla received a written reprimand as a result of his failure to report a suspected security breach of the County’s computer security system. The written reprimand was for incompetence or inefficiency in the performance of his duty, negligence or willful misconduct, and conduct unbecoming a County employee. Further, connected to the reprimand, Mr. Lalla was reassigned within the IT infrastructure area to another division, the Data Center Division, at which he had new duties and responsibilities. His new supervisor was Adrienne DiPrima. In an email dated December 17, 2008, from Ms. DiPrima to Mr. Lalla, among other things, Ms. DiPrima welcomed Mr. Lalla, indicating that their group was “hoping for a new person to work with [them] on mainframe security” and acknowledging that he had a very limited background in mainframe security. Further, among other things, she advised him that, because it was “a difficult time of year to get started on anything long-term,” for now, he would be working closely with another employee to handle the “day-to-day RACF administration tasks” so that the employee could “concentrate on the upgrades being done for the new operating system release.” On or about January 15, 2008, Mr. Lalla’s reassignment was effective and that was when Ms. DiPrima first met with him. She was leaving the next day for a vacation. Ms. DiPrima met with Mr. Lalla briefly. During the meeting, among other things, she indicated to him that, during her absence, she wanted him to become familiar with the day-to-day operations and work with the person in the particular area that he (Mr. Lalla) was assigned, with that person also being Mr. Lalla’s mentor. Additionally, they discussed the potential for training Mr. Lalla in his new area and the possibility of the Data Center Division funding the cost for training courses. When Ms. DiPrima returned from vacation, she and Mr. Lalla also reviewed the procedure for requesting leave time. Among other things, she advised him that she does not generally deny leave if coverage for the absent person’s duties and responsibilities is available; but for extended leave, for instance a week or two, advance request/notice and approval were required in order to make sure that a person was available for coverage and to make arrangements for the coverage. For several months, Ms. DiPrima saw nothing in Mr. Lalla’s work performance that suggested any disciplinary issues might arise. Therefore, no disciplinary action was contemplated against him. At no time in the reassignment did anyone suggest or did Mr. Lalla believe that he was going to be subjected to any disciplinary action. However, having gone through the previous disciplinary action, together with learning new responsibilities and duties in what he believed to be a short period of time, Mr. Lalla was feeling pressured. The perceived pressure affected him mentally and physically. On April 3, 2008, Mr. Lalla submitted a leave of absence form to ETSD’s Personnel Officer, Shanda Mazzorana, for an unpaid leave of absence for the period from April 9, 2008, through April 9, 2009. The form contained, among other things, a section for the reason for the request, with one of the reasons being “Personal Reason” and subcategories being “Religious holidays,” “Education not related to the job,” and “Other.” He checked “Personal Reason,” “Education not related to the job,” and “Other.” Also, among other things, the leave of absence form provided two lines for the explanation for the request. Mr. Lalla provided as an explanation for the one-year leave of absence that the request was for “Religious and spiritual pursuits of Buddhism at overseas Monastery.” Mr. Lalla did not attach any documents to his request. Ms. Mazzorana asked Mr. Lalla to further explain why he wanted the unpaid leave. He informed her that he was seeking leave to study Buddhism. She requested him to provide some written information to supplement his request. In response to Ms. Mazzorana’s request, Mr. Lalla provided a single page informational sheet about the Buddhist Monastery that he had obtained from his mother. She attached the informational sheet to his request and forwarded the entire packet to the Director and Chief Information Officer, Donald Fleming, for his review and decision. Buddhism and Hinduism are interrelated. Mr. Lalla believed that the religion of Buddhism provided him a remedy to deal with the mental pressures that he was experiencing at work, instead of seeking medical or psychological assistance either privately or through his employer, the County. Nowhere in his request did Mr. Lalla express this reasoning for his request. Mr. Lalla’s religion of Hinduism did not require him to study Buddhism at a monastery for a year. Ms. DiPrima was unaware that Mr. Lalla wanted or had requested an extended leave of absence. Before making a final decision, Mr. Fleming inquired of Ms. Mazzorana whether any prior employees had requested an extended leave of absence that was non-health or non-medical related. Ms. Mazzorana provided two precedents that had occurred over a 25-year period. One situation involved a full- time employee who requested a leave of absence for six months in order to obtain an advanced degree, a Ph.D. The request was denied. Another situation involved a probationary employee who requested a six-week leave of absence to attend a religious retreat. A probationary employee did not have the right to request a leave of absence, and, as a result, his request was also denied. The County’s Leave Code, Section 8, Leave of Absence is applicable to the instant case. Section 08.01.01, as to a leave of absence generally, provides, among other things, that “A leave of absence is an approved absence without pay for a maximum period of one year.” No dispute exists that Mr. Lalla was eligible for a leave of absence as a permanent employee pursuant to Section 08.02.01. Also, Section 08.03.01 sets forth the reasons that a leave of absence may be granted, i.e., medical reasons, job- related reasons, personal reasons, and military, and provides in pertinent part: A leave of absence may be granted for the following reasons: Medical Reasons * * * Job-related Reasons Education related to the job . . . To serve as a full-time representative of an organization composed entirely of County employees To accept an exempt position For other job-related reasons in the best interest of the County service . . . Personal Reasons Education not related to the job . . . Dependent care for a child, spouse, parent or other dependent for federal income tax purposes who is physically or mentally incapable or caring for himself . . . For other personal reasons in the best interest of the County service . . . Military . . . . Additionally, Section 08.04.00 sets forth the application procedure for a leave of absence and provides in pertinent part: 08.04.01 Employees seeking a leave of absence must make a written request to their department director . . . * * * 08.04.03 The department director may request any additional information supporting the request for the leave of absence . . . 08.04.04 The department director may approve or deny requests based on the facts of each case. Approval or denial by the department director must be applied consistently and on the same terms within categories a, c and d of Leave of Absence (Section 08.03.01) although the terms for each separate category may be different. . . 08.04.05 Approval may be for the full period requested by the employee or any portion of such period. Further, Section 08.05.00 sets forth the benefits period for a leave of absence and provides in pertinent part: 08.05.01 A leave of absence may be granted for a maximum period of one year . . . and a minimum period of one pay period. Mr. Fleming considered the staff situation at the County. The County was in a hiring freeze and had lost positions. Mr. Fleming also considered the staff situation at the Data Center Division. A review by him showed that the Data Center Division was understaffed. Mr. Fleming was unable to determine how he would be able to burden the staff with the additional work, if Mr. Lalla’s request was granted, and get the work completed. Additionally, Mr. Fleming considered Mr. Lalla’s request as an academic request, with a religious course of study. Taking into consideration the totality of the circumstances, as to the staff situation at the County and, in particular, at the Data Center Division, the inability to effectively and efficiently re-assign Mr. Lalla’s duties and responsibilities, during his one-year leave of absence, and the precedent of requests for extended leave of absence, Mr. Fleming determined that there was no reasonable basis to grant Mr. Lalla’s request. On April 7, 2008, Mr. Fleming denied Mr. Lalla’s request. Even if Mr. Lalla’s request were considered a religious request, the result would have been the same. Based on the same reasoning, Mr. Fleming would have denied a religious request. Mr. Lalla would have agreed to a shorter period of time as an accommodation to what he (Mr. Lalla) was requesting. However, neither Mr. Fleming nor Mr. Lalla suggested an accommodation of a shorter period of time for the leave of absence. Additionally, Mr. Lalla was aware that a Buddhist monastery was located in Homestead, Florida. He did not suggest to Mr. Fleming, as an option, attending the Buddhist monastery in Homestead, instead of in India. No evidence was presented that Mr. Fleming was aware of the monastery in Homestead. Ms. Mazzorana advised Mr. Lalla of the denial of his request for a leave of absence by Mr. Fleming and the reasons for the denial. She provided Mr. Lalla a copy of the completed leave of absence form that was signed by Mr. Fleming. Ms. DiPrima was also advised of the denial of Mr. Lalla’s request for the extended leave of absence. On April 14, 2008, Mr. Lalla requested approval from Ms. DiPrima for a two-week vacation beginning the next day on April 15, 2010. Among other things, he advised her that the union was attempting to get the one-year leave of absence approved; that there were certain things that he wanted to do in preparation for the one-year leave of absence; that the two-week vacation would provide him that preparation time; and that two co-workers were available to and had agreed to perform his duties during his absence. Ms. DiPrima denied Mr. Lalla’s request for the two- week vacation. She pointed out to him that there were assignments that he had not completed and that the request was not submitted sufficiently in advance to make sure that his work duties and assignments were covered. Mr. Lalla decided that he could no longer remain with the County. He decided to resign. Mr. Lalla did not discuss with anyone at ETSD that he was contemplating resigning or his decision to resign. On April 15, 2008, Mr.Lalla sent a memorandum to Human Resources regarding his resignation. He indicated, among other things, that, due to recent workplace circumstances, which “severely impacted [his] mental and spiritual health” and the denial of his request for a leave of absence, he was “forced to tender [his] resignation under duress, effective immediately.” Further, among other things, he set forth the workplace circumstances, which were, in essence, how ETSD handled the suspected security breach in the Security Office and handled him and his fellow employees in the Security Office; and set forth the circumstances of the denial of his request for a leave of absence, which he sought for “Religious and Spiritual pursuits,” attempting “to rebuild and repair [his] damaged mental and spiritual health.” Furthermore, on April 15, 2008, among other things, Mr. Lalla sent an email to Ms. DiPrima, while she was at lunch, indicating that, having reviewed what had occurred over the past 12 months, he was “forced” to resign, effective immediately, “under duress.” Further, he cleared his desk; reformatted his computer; and walked out of ETSD without speaking to anyone. The County’s policy required Mr. Lalla to give at least two weeks notice before resigning if he wanted to resign in good standing. By failing to give at least two-weeks notice, he did not resign in good standing.
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 finding that the County of Miami-Dade, FL ETSD did not commit an unlawful employment practice by discriminating against Delano Lalla on the basis of religion and national origin and retaliated against Delano Lalla in violation of the Florida Civil Rights Act of 1992, as amended. DONE AND ENTERED this 3rd day of June, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of June, 2010. COPIES FURNISHED: Delano Lalla 8051 Southwest 159th Court Miami, Florida 33193 Lee Kraftchick, Esquire Miami-Dade County Attorney’s Office 111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent had been employed by Petitioner as a teacher's aide for approximately eight years, and was so employed at the beginning of the 1982-83 school year. She was terminated by Petitioner at its meeting on December 8 1982. Respondent had 34-1/2 days of absences without accrued leave during October, November, and December, 1982. Most of the early absences were authorized by Dr. Patrick Gray, a personnel official of Petitioner's. On November 3, 1982, Dr. Gray informed Respondent that she was at that time on unauthorized leave and gave her ten days to request leave or face charges of abandoning her position (Petitioner's Exhibit 1). Respondent's failure to comply with this ultimatum led to her discharge. Respondent had serious personal problems during this period. Petitioner attempted to obtain psychiatric assistance for her, which she rejected. Respondent conceded that she abandoned her position, citing low pay and Petitioner's failure to promote her. She voiced these and other grievances with the school system, all of which are beyond the scope of this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order affirming Respondent's discharge from its employment. DONE AND ENTERED this 6th day of May, 1983, at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Ms. Mary A. Lilly 14990 Northeast 10 Court Miami, Florida 33161 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent employer is guilty of an unlawful employment practice (discrimination under Section 760.10, Florida Statutes) against Petitioner on the basis of his race (Black/African-American), handicap, or retaliation, and if so, what is the remedy? Although cases arising under the federal Americans With Disabilities Act (ADA) may be instructive for interpreting and applying the handicap provisions of Chapter 760, Florida Statutes, Petitioner's claim under ADA and any allegations of libel and slander are not within the jurisdiction of the Division of Administrative Hearings.
Findings Of Fact Petitioner, Lawrence James, Jr., is a Black/African- American. Respondent, The Alachua County Department of Criminal Justice Service, is an "employer" within the definition in Section 760.02(7), Florida Statutes. Respondent operates the Alachua County Jail. Respondent maintains a paramilitary command, advancement, and ranking system for its employees. Petitioner began his employment with Respondent as a Correctional Officer and rose to the rank of Sergeant. On March 2, 1994, an inmate escaped from the Alachua County Jail during the evening shift. As a result of the inmate's escape, several correctional officers were disciplined. Petitioner was disciplined by a reduction in rank April 26, 1994. (P-37) There were allegations that harsher discipline had been meted out to the Black/African-American officers, and the matter was arbitrated, pursuant to the union collective bargaining contract. As a result of the arbitration, in the summer of 1994, it was recommended that Petitioner be returned to his position at the Jail with restoration of rank, but without any back pay. However, at the time of that recommendation, Petitioner already had been terminated for "a non-related infraction of county policy." (P-37) The "non-related infraction of county policy" reason for Petitioner's 1994 termination was not established on this record, but neither was any discriminatory reason proven.2 After Petitioner's 1994 termination, further proceedings ensued, and Petitioner was ultimately restored to his rank and position at the Jail. As part of this restoration, it was agreed the Respondent employer would conduct training and re-orientation sessions for Petitioner, since he had not actively been performing his duties at the Jail for approximately two years. The present case only addresses the discrimination Petitioner allegedly suffered due to race, handicap, or retaliation concerning his leave requests in 1996, and his 1997 termination for unauthorized absence. After his second successful arbitration(s) and/or grievance procedure, Petitioner was eligible to return to work on February 19, 1996. He did not return on that date. Respondent ordered Petitioner back to work on March 13, 1996, at which time Petitioner requested, and was granted, leave under the Family Medical Leave Act (FMLA). It is not clear if Petitioner ever made Respondent aware that he suffered from high blood pressure, but from the evidence as a whole, it is found that Petitioner notified Respondent in March 1996, that he was suffering from a prior on- the-job injury to his back, diabetes, and depression. Diabetes, as experienced by Petitioner, is a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. Clinical depression, as experienced by Petitioner, is a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. Petitioner contended at hearing that his clinical depression in 1996 was due to his 1994 demotion and termination and the procedures to get his job back and also due to the hostile work environment he anticipated he would face if he returned to work daily in 1996 with people whom he perceived as having lied about him and who had tried to terminate him. It should be noted that Petitioner did not clearly include "hostile work environment" in either his 1998, Charge of Discrimination or his 2000, Petition for Relief. The Florida Commission on Human Relations only considered and referred the instant case upon allegations of discrimination on the basis of race, handicap, and retaliation. From Petitioner's description of his back ailment, it is found that condition also constituted a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. From Petitioner's description of how his back injury affected his daily life and job performance, it is very doubtful that Petitioner was able to physically fulfill the requirements of being a jailor at any time in 1996 until he was terminated in 1997. No evidence was presented with regard to the workers' compensation consequences of this situation. By an April 1, 1996, letter, Respondent's Interim Director of Criminal Justice Service, Richard Tarbox, informed Petitioner that he had exhausted his sick leave credits as of the pay period ending March 31, 1996; that based on Respondent's records, Petitioner would exhaust the balance of his accrued sick leave at the rate of forty hours per week during the pay period ending May 12, 1996; that he was expected to know his available accrued leave credits and to contact his immediate supervisor at least one week prior to the expiration of the current leave period to request leave without pay if he anticipated not returning to work; and that he had been placed on FMLA leave for an indefinite period, not to exceed twelve weeks, which would expire on June 6, 1996. (R-30) The April 1, 1996, letter specifically informed Petitioner that failure to come to work or contact Respondent could be considered abandonment of his position. (R-30) The foregoing instructions concerning "abandonment of position" parallel Alachua County's Personnel Regulations and Disciplinary Policy, hereafter sometimes referred to collectively as "personnel regulations." (P-1). Chapter XIX. 3. OFFENSES AND PENALTIES; c. Group III Offenses No. 8, at pages 5-6, of the personnel regulations had existed prior to Petitioner's 1994 termination, and was in effect at all times material. It provided, Absence of three consecutive work days without proper authorization at which time the employee is considered to have abandoned the position and resigned from the County's employ. The personnel regulations also provided in Chapter XIX. 3. OFFENSES AND PENALTIES; a. Group I Offenses No. 8, at pages 3-4, that the following offense would subject an employee to progressive discipline: Absence without authorization or failure to notify appropriate supervisory personnel on the first day of absence. (Emphasis supplied). This regulation also had remained unchanged since Petitioner's last employment with Respondent in 1994, and was in effect at all times material. Progressive discipline for the first such offense was written instruction, counseling and/or one-day suspension. For the second occurrence, one to five days' suspension was specified. For the third occurrence, up to five days' suspension or discharge was specified. These provisions also had remained unchanged since Petitioner's last employment with Respondent in 1994 and were in effect at all times material. Petitioner was also familiar with the long-standing progressive discipline system of Respondent's personnel regulations. Basically, this system required that discipline first be proposed in writing by a superior. The proposed discipline would go into effect and become actual discipline if the employee did not appear at a hearing to dispute the charges or the proposed discipline. If the employee prevailed at the hearing, the proposed discipline would be rescinded or altered. If the employee did not prevail, the proposed discipline would be reduced to writing in another document, and the employee then had the option of filing a grievance pursuant to the union collective bargaining agreement or of appealing through the personnel system to a citizens' board. While Petitioner had been absent in 1994-1996, a new requirement had been added to the personnel regulations, under Chapter A-299, which required that employees who planned to be absent, must notify their immediate supervisor no later than 30 minutes from the time they are scheduled to report for work. (Emphasis supplied) The "immediate supervisor" or "appropriate supervisory personnel" in Petitioner's situation would have been the lieutenant on his shift. However, Petitioner and Lt. Little, who became his supervisor, concurred that the custom at the Jail always had been to require that employees contact the shift sergeant on the shift preceding an emergency absence, or if that were not possible, to contact the employee's own shift sergeant or anyone else on that shift. Jail custom also provided that the employee who was going to be absent could rely on any person on his shift to deliver his oral message to the employee's supervising lieutenant and that approval or disapproval paperwork would be handled by that lieutenant after notification. On June 6, 1996, Petitioner still had not returned to work. Instead, he requested leave without pay until June 15, 1996. Respondent granted Petitioner's request. This constituted an accommodation of Petitioner's handicap(s) in that he had no remaining earned leave or entitlement to FMLA leave, yet his employer held his position open for his return. On or about June 10, 1996, Anthony F. Greene, Ph.D., a clinical psychologist at Vista Pavilion, a free-standing psychiatric facility, released Petitioner to return to work. He wrote to Respondent's Risk Manager that Petitioner continued to have problems with depression, which might prove "volatile" in a work environment with superiors Petitioner believed had harassed him by terminating and blaming him for the 1994 escape. At approximately the same time, Richard Greer, M.D., medical specialty unexplained, also released Petitioner to return to work, upon the conditions that Petitioner continue to see Dr. Greene on a weekly basis and continue to take his prescriptive medications. By a July 17, 1996, letter (P-4), Interim Director Richard Tarbox notified Petitioner to report for work at the Jail on the evening shift of July 22, 1996. The letter required Petitioner to continue his sessions with Dr. Greene; to continue to take his prescriptive medications; and to take the re- training and re-orientation specified as a result of the resolution of his 1994 termination and return to work. (See Finding of Fact 7.) The July 17, 1996, letter also included the sentence, We are in the process of contacting Dr. Greene to establish a procedure to verify that you continue your sessions with him. Petitioner interpreted this sentence as the employer's promise "[T]o get all my leave slips, find out when I was going to the doctor, my mental condition, and also my medical condition." (TR-Vol.II, pages 175-176) Petitioner's interpretation of this sentence was unreasonable in light of its express language, the context of the remainder of the July 17, 1996, letter, the instructions of the April 1, 1996, letter (See Findings of Fact 16-17), and what Petitioner already knew of the County's personnel regulations and/or the Jail custom requiring him to call in and/or apply for leave to be subsequently approved or disapproved by his supervisor. Nothing in the July 17, 1996, letter altered the requirements of the personnel regulations or the April 1, 1996, letter. Petitioner bore the responsibility to ask for medical leave sufficiently in advance of his absences. On July 22, 1996, Petitioner reported for work at the Jail as instructed and was assigned to an evening shift supervised by Lt. Stover. According to Sgt. Babula, Petitioner also worked under Shift Sgt. Withey at some point in July 1996. However, by July 1996, Petitioner was an insulin- dependent diabetic. He needed to self-administer a shot of insulin each morning and night. To ensure ideal spacing of these two shots, Petitioner almost immediately requested to work the day shift. Respondent accommodated this request concerning Petitioner's handicaps and assigned him to the day shift under Lt. Little and Sgt. Babula, as shift sergeant. Petitioner claimed his handicaps were not accommodated by Respondent, but in addition to approving leave for him from February 19, 1996, to July 22, 1996, not replacing him during that period, and the change of shift made in July 1996, at Petitioner's request, Sgt. Babula testified to approving special shoes for Petitioner due to his diabetes. By September 1996, Petitioner again had used up all of his accrued leave. Accordingly, he had to ask for leave without pay to visit his various doctors, including Dr. Greene. On September 9, 1996, during a therapy session, Petitioner told Dr. Greene that he had been threatened on the job and that he was pursuing resolution of the incident through appropriate channels. The same day, Dr. Greene wrote to Lt. Little, telling him of the threat. The nature of this alleged threat or who made it was not stated in Dr. Greene's letter or at hearing. The letter cleared Petitioner to return to work September 12, 1996. This out-of-court statement to his psychotherapist at that time does not establish the truth of the statement or that Petitioner's superiors made the alleged threat. Also, the threat, if one existed, could not have related to Petitioner's written leave requests, because Petitioner's earliest dispute about leave did not occur until September 13, 1996. (See Finding of Fact 41). The September 9, 1996, date was not related by testimony to any oral or written request for leave or any disciplinary matter in evidence. Petitioner testified to having been threatened on the job sometime prior to September 9, 1996, but he never testified what the threat was, why the threat was made, or by whom the threat was made. Petitioner's witness, Alfred Dickerson, also is African-American. He testified generally that it was "pure hell" at the Jail for anyone who, like himself and Petitioner, had been disciplined due to the 1994 escape and who had prevailed in the resultant grievance activities, but he could not remember any specific incidents involving Petitioner. Moreover, Mr. Dickerson was out of the Jail, on workers' compensation leave, from May 1996 to October 1997, the whole of the material time frame for this case.3 On September 16, 1996, Petitioner submitted an "after the fact" request for leave without pay to Lt. Little, his supervisor, for the previous dates of September 13 and 15, stating thereon that he had been ill those days and that the request was being made because his request to work his days off to make up for the 16 hours of leave he had used on September 13 and 15 had been denied. The request does not specifically mention "flex time." (P-6) "Flex time," as described by both Petitioner and Lt. Little, would have permitted Petitioner to work his days off, instead of taking time off without pay to make up time used to go to his doctors on days he was scheduled to work. However, if an employee asked to use flex time in this way, another employee had to trade days with him, and the exchange would be worked out by the supervising lieutenant. On October 1, 1996, Petitioner was given a "Letter of Warning" by Lt. Little. The Warning reflected that Petitioner's advising a sergeant other than his immediate supervisor, Lt. Little, on September 24, 1996, that he was not coming to work until some personal matters were taken care of, was insufficient notice and was being treated as "absence without authorization" in violation of the personnel regulations. It also stated, It has been standard practice and understood that you must notify your immediate supervisor . . . please be advised that any further violations of this nature may result in docked pay and progressive disciplinary action . . . Attached to this document was a Notice of Disciplinary Action, also prepared October 1, 1996, stating, Disciplinary action taken as a result of the Notice of Proposed Disciplinary Action dated blank not filled in. (Except for WARNING) WARNING (Reasons for warning): Violation of Alachua County Personnnel Regulations, Chapter XIX, Section 3, a., Group I, Offense No. 8 'Absence without authorization'. (P-8) The same document notified Petitioner that he had a right to appeal the Warning pursuant to either the personnel regulations or the grievance procedure in the collective bargaining agreement, as appropriate. Petitioner did not acknowledge receipt of this latter document until October 7, 1996. (P-8/R-19) Also on October 1, 1996, Petitioner submitted an "after the fact" request for leave without pay for September 23- 26 and for September 29-30, to Captain King. The reason for Petitioner's absence September 23-26 was not stated on the formal request, but Petitioner did again state thereon that his request to "flex" his days off had been denied, presumably by Lt. Little. The time for September 29-30 was requested for "personal business and emergency family leave without pay" due to his mother's seeing a doctor about her detached retinas. (P-7) Respondent is not obligated under Chapter 760, Florida Statutes, to accommodate Petitioner's family's handicaps.4 On October 21, 1996, a "Notice of Proposed Disciplinary Action" was issued by Lt. Little, apparently covering the same date, September 24, 1996, as his October 1, Warning, and adding other dates. The reasons for the proposed discipline given in this October 21, 1996, Notice differ slightly from the content of the October 1, Warning. The October 21, 1996, Notice related that on September 23, Petitioner had spoken to Captain King and Lt. Little, and because his request for leave had been made in advance, Petitioner had been granted the day off; that on September 24, Petitioner had failed to report to work and failed to request an extension of leave, and he was therefore considered to be "absent without authorization" for September 24, 1996. The October 21, Notice further stated that on September 25, Petitioner had called Captain King, requesting leave without pay for September 25 and 26, and because Petitioner had requested leave in advance, Captain King had granted the request covering those two days, but that on his October 1, leave request (see Finding of Fact 44) Petitioner had included two more days, September 29 and 30, which had not been previously authorized. Finally, the October 21, Notice indicated that on September 30, Petitioner had called Lt. Stover to say that he would be reporting to work as soon as he was through testifying to the Grand Jury that afternoon, and that his failure to request leave in advance was being treated as "absence without authorization and failure to request leave without pay in advance." As of this October 21, 1996, Notice, the proposed disciplinary action became suspending Petitioner without pay. Petitioner was offered an opportunity to contest the proposed disciplinary action at a hearing on November 19, 1996. Petitioner acknowledged receipt of this document on October 24, 1996. (R-21) On October 22, 1996, Petitioner wrote to the Interim Director of the Jail, Richard Tarbox. In his letter, Petitioner complained that he had not yet received the agreed re- orientation and re-training. He also discussed his medical problems, including problems with recent changes in his medications and his five-year-old back injury. He requested flex time and related that his life had been threatened by employees on the job (see Findings of Fact 37-40), and that Lt. Little had been informed of the threats and flex time request, but the letter again did not indicate by whom Petitioner was threatened or why. (P-10) Despite Petitioner's after-the-fact written requests for flex time, Lt. Little had no recollection of Respondent ever asking him for flex time. There is no evidence that Lt. Little, Mr. Tarbox, or any other representative of Respondent contacted Petitioner concerning the alleged threat against him or specifically addressed the issues of re-orientation/re-training or flex time. On October 25, 1996, Dr. Greene also wrote Mr. Tarbox. He described Petitioner as cooperative and not evidencing any inappropriate behavior. He reported that Petitioner had voiced no homicidal or vengeance ideation to him. He felt that Petitioner's supervisors' requirement that Petitioner use leave to attend the mandatory therapy sessions with him constituted a paradox and a stressor for Petitioner. He felt that other stressors were the employer's failure to offer re-orientation/ re-training to Petitioner and the employer's failure to contact him, Dr. Greene, to verify treatment purposes and schedules. Dr. Greene requested that Mr. Tarbox clarify Petitioner's treatment and work status to both him and to Petitioner in a timely manner because not doing so was exacerbating Petitioner's physical condition, headaches, and diabetes. He further stated that he could release Petitioner for work without further psychological treatment and that further psychological treatment was not necessary to ensure Petitioner's fitness for work or to prevent his being a risk to others, but that Petitioner would continue in therapy for other purposes. (P-11) Neither Mr. Tarbox nor any other representative of Respondent specifically replied to Dr. Greene's October 25, 1996, letter. However, all leave disputes pending on that date were addressed in a November 22, 1996, letter to Petitioner from Captain King. (See Findings of Fact 57-59.) On October 31, 1996, Petitioner submitted an "after the fact" request for eight hours leave without pay for leave he had taken on October 30, 1996, for "emergency dr. app't for work related injury, and lab work for diebetic [sic] condition." (P-14) At some point, a leave form for eight hours leave without pay on November 9, 1996, was prepared. It indicates that Petitoner was "unavailable to sign." This form was disapproved by Lt. Little and by Mr. Tarbox on November 12, 1996. Apparently Petitioner only signed the request on November 26, 1996. (P-21) On November 14, 1996, Petitioner submitted a request for two hours leave without pay for November 15, 1996, for "work related condition, Dr. Greene." (P-15) On November 19, 1996, Petitioner submitted a request for two hours leave without pay for November 22, 1996. The request was approved by a supervisor on November 19, 1996. (P-17) On November 22, 1996, Captain King issued a "Letter of Warning" to Petitioner. It stated that on November 19, 1996, a disciplinary hearing had been held (see Finding of Fact 47) regarding the October 21, Notice of Proposed Disciplinary Action, addressing Petitioner's absences on September 29-30, 1996, and that because Petitioner had proven that he had attempted to contact his supervisor in advance of his absence, the September 29 violation was being withdrawn. With regard to the September 30 violation charged, it was found that Petitioner had contacted Lt. Stover and informed him that Petitioner would return to work after testifying before The Grand Jury, and since Petitioner had not returned to work on that day after testifying, he was being found guilty as charged for violation of Alachua County Personnel Regulations, Chapter XIX, Section 3. a. Group I, Offense No. 8, "Absence without authorization and failure to request leave without pay in advance." The November 22, 1996, letter went on to warn Petitioner that future violations would be more carefully scrutinized for strict adherence to the policy of notification and that failures on Petitioner's part might result in progressive disciplinary action being taken. (P-20) Because prior discipline had been overturned or rescinded, the November 22, 1996, Letter of Warning was technically Petitioner's first violation/discipline. Also on November 22, 1996, Petitioner submitted to Lt. Little a leave request form, dated the same day, labelled "FOR INFO.," with supporting documentation, including Dr. Hunt's certificate showing Petitioner had been treated on November 4, and November 22, 1996, had office management of HTN/NIDDM hematuria, a pending IVP and urology consult, and would need to be seen again by Dr. Hunt in 4-6 weeks. The language of one attachment showed Petitioner "is under Dr. Hunt's continual care," but nothing specified any period of time Petitioner intended to take off from work for the pending consultation or any other purpose. (P-19) Petitioner testified that his November 22, 1996, leave request was not intended to request any leave at all when he submitted it, but that it should have alerted his supervisors that Petitioner had a growth between his legs that was potentially malignant and that he needed an operation sometime in the future. A reasonable person would not have concluded this from the four corners of the November 22, 1996, written request with attachments dated for past medical appointments. Petitioner also testified that by submitting the November 22, 1996, leave request "in blank" and explaining orally to Lt. Little what he intended to do was his effort to comply with the requirement that he ask for leave in advance of taking it. This testimony shows that Petitioner at this point understood the employer's prior instructions to request leave in advance. Apparently, Petitioner envisioned only having to phone in to get any member of his shift to fill in the blanks on his November 22, 1996, request form, but he admitted he had never before used a blank leave request in this way. Petitioner further testified that he had told Mr. Tarbox and other supervisors at a meeting (probably one of his disciplinary hearings) before Christmas 1996, that he "did not know how long he could work." While this representation of Petitioner is credible and it may be reasonably inferred that Mr. Tarbox understood Petitioner was debilitated to some degree by the growth and might need an operation sometime in the near future, it does not logically follow that all those hearing Petitioner at that time understood that his oral statement related to the November 22 blank leave request which had attached to it only information about past doctors' appointments and potential, undated, future consultations. Petitioner's vague statement at the meeting/hearing did not comply with the letter of the personnel regulations nor the custom at the Jail for requesting leave. The blank November 22, 1996, leave request marked "FOR INFO" also did not comply with the letter of the personnel regulations nor the custom at the Jail. There is no requirement that Respondent grant Petitioner an open-ended request for leave or one that specifies no time period at all. Petitioner's November 22, 1996, blank leave request was never approved. On November 26, 1996, Petitioner also acknowledged receipt of a "Notice of Proposed Disciplinary Action," by which Lt. Little and Mr. Tarbox recommended that Petitioner be suspended without pay.5 Petitioner was again offered an opportunity to contest this proposed disciplinary action at a hearing on December 3, 1996. (P-18) The record is silent as to whether a disciplinary hearing was actually held on December 3, 1996. Petitioner submitted a leave form on December 6, 1996, for 2.5 hours "vacation" leave without pay on December 3, 1996, for a "Conference with doctor to try an [sic] stop continued disciplinary action because of illness doctor approved." (P-23) On December 3, 1996, Petitioner had telephoned Lt. Little to ask if his message had been received. He then reported to work at 10:00 a.m. Respondent's business records (P-22) show the following: Petitioner worked December 4-5, some of December 6, and all of December 7, 1996. He was not required to be at work on December 8-9. He called in sick on December 10-11. On December 12, he reported for work and attended five hours of drug policy training. Then he left for medical reasons and later called in to say he was too sick to return to work. On Friday, December 13, Petitioner called in sick, saying he was going to the doctor for a cut foot. He later called in again and was told that he needed to do his timesheet and it was agreed he would do it and have it in the following Monday. Petitioner was absent on Saturday, December 14. He was not required to be at work on December 15-16, 1996. On Monday, December 17, Petitioner did not phone or appear for work. On December 18, Petitioner phoned in, saying he had to wear bedroom slippers and had domestic problems. On December 19, Petitioner called in late and left a voice message on the Jail phone. On Friday, December 20, Petitioner called in on time but said he would not be in until Tuesday of the following week. He gave no reason. He was not required to be at work on December 22-23. On December 24, 1996, Petitioner did not come to work or call in. On Christmas Day, Petitioner called in before shift and stated he would not be in that day or the following day, December 26, 1996, until 10:00 a.m. On December 26, December 27, and December 28, Petitioner did not report for work or call in. Petitioner was not required to work December 29 or 30, 1996. On December 31, Petitioner called and said that he would not be in that day but would call back to talk to the shift lieutenant. He did not do so. Also, Petitioner did not report for work or call in for January 1 through 4, 1997. Most of this business record was substantiated by the direct testimony of Sgt. Babula and Lt. Little who observed the events and wrote most of the business record. The matters that were not confirmed in their direct testimony were supported by the type of hearsay that explains or supplements direct evidence and is admissible in this type of proceeding. Petitioner acknowledged that the business record was essentially correct as to days he was absent in December 1996, and January 1997. Petitioner's testimony only varies the foregoing business record to the effect that on December 10, 1996, not December 13, 1996, Petitioner called and spoke with Sgt. Withey, stating that he would not "be back [to work] until [he had] seen and heard from [his] doctors," and related to Withey that he had some problem with his foot. Petitioner assumed that his superiors would get this message and would understand that he meant he was exercising the blank November 22, 1996, leave request. (See Findings of Fact 60-66). His superiors did not infer from this message what Petitioner had hoped they would. A reasonable person would not infer all that from the information Petitioner says he provided Sgt. Withey. It is uncontested that Petitioner did have an injury to his foot at this time and that such injuries can be particularly hazardous to persons who, like Petitioner, suffer from diabetes. From December 4, 1996, onward, Petitioner did not speak directly with his lieutenant, although he had been repeatedly instructed to do so in order to request advance leave. Petitioner did not return to work after December 7, 1996. Despite the personnel rules, custom at the Jail, and prior direct orders by warning and disciplinary action letters, Petitioner submitted no leave slips directly to his superiors after December 6, 1996. Instead, he submitted them to his union shop steward and to a County Commissioner, although he had no reason to believe the Commissioner had any authority over Jail personnel matters. Respondent never authorized leave for Petitioner after December 13, 1996. Petitioner's extended absence without authorization was in violation of Respondent employer's long-standing "three day abandonment rule." There had been no word from Petitioner since December 31, 1996, so between January 17 and January 24, 1997, a "Notice of Disciplinary Action" was issued against Petitioner for [V]iolation of Alachua County Personnel Rules and Regulations, Chapter XIX, Section 3, c., Group III, Offense No. 8 'Absence of three (3) consecutive work days without proper authorization at which time the employee is considered to have abandoned the position and resigned from the County's employ.' The proposed discipline was termination, and again, Petitioner was offered the opportunity to contest the proposed final agency action at a hearing to be convened on February 18, 1997. (P-25) Sometime in January 1997, Petitioner saw a Master of Social Work, because Dr. Greene was on educational leave. Petitioner was so upset that the social worker advised him to focus on his medical problems. Apparently, Petitioner leapt to the conclusion that meant his doctors would handle all his leave-related problems. Sometime in January 1997, Petitioner had successful surgery on the growth between his legs. On January 27, 1997, Dr. Greene saw Petitioner in therapy and notified Mr. Tarbox in writing that, Mr. Lawrence James was seen for an appointment today in my office. He is apparently unable to continue working in what is perceived to be a hostile work environment at the jail. Compounded by his medical problems and what seems to be a lack of responsivity and accommodation by the administration, Mr. James' level of emotional distress has considerably increased since our last communication. It is strongly recommended that he take a leave of absence from the workplace until his condition is improved. He is scheduled to return next week for continued intervention. Thank you for your time and attention. (Emphasis supplied) (P-26) Dr. Greene testified that it was Petitioner's combined mental and physical circumstances which caused him to recommend the leave of absence. The January 24, 1997, Notice of Proposed Disciplinary Action was mailed to the last address Petitioner had given Respondent. On January 30, 1997, Petitioner's mother signed the certified mail receipt for the January 24, 1997, Notice of Proposed Disciplinary Action. Sometime thereafter, she delivered the Notice to Petitioner, who no longer lived with her. He refused to deal with it. Dr. Brient removed a suture from Petitioner's leg on February 4, 1997. This seems to have related to Petitioner's post-surgery release after removal of the growth between his legs. Petitioner did not then return to work. Because Respondent's principals had not recognized Petitioner's mother's name on the certified mail receipt, they caused the January 24, 1997, Notice of Proposed Disciplinary Action to be served on Petitioner by a Deputy Sheriff. Petitioner received this personal service on February 5, 1997, and told the Deputy that he would not deal with the Notice of Disciplinary Action, but his doctors would. Having been released as a result of his operation, there was no physical reason Petitioner could not have appeared for the February 18, 1997, hearing to present any opposition to his proposed termination based on "the three day abandonment rule." He did not appear. On February 21, 1997, Petitioner was mailed a "Notice of Dismissal," effective that date and signed by Harry Sands, a new Interim Director, for abandoning his position, in violation of the personnel regulations. The Notice of Dismissal gave Petitioner the option of appealing his termination through the employee appeal system or the collective bargaining grievance procedure. Petitioner did not take either appeal route. However, Petitioner did suggest to another Jail officer that those who had done this to him might need to get a pine box, i.e. coffin. The threat was not deemed worthy of prosecution by the State Attorney's Office. Petitioner testified, without corroboration, that he never received the promised re-orientation or re-training associated with re-instatement to his job. No witness gave any clear indication of what the re- orientation and re-training, as contemplated by the re- instatement agreement (see Finding of Fact 7) or as contemplated by Mr. Tarbox's July 17, 1996, letter (see Finding of Fact 29), was supposed to include. Lt. Stover did not remember any specific training he gave Petitioner, nor did Lt. Little, but Lt. Little testified that he was present when, before Petitioner first arrived on Lt. Stover's shift in July 1996, the Captain had ordered them both to "bring [Petitioner] up to speed." Petitioner suggested that failure to re-orient and retrain him evidenced Respondent's discrimination against him. His post-hearing proposal also asserts that due to Respondent's failure to train him in "new" personnel regulations, combined with Respondent's requirement that he adhere to those regulations which Jail custom did not normally follow, constituted disparate treatment and/or discrimination against him on the basis of his race or due to retaliation, and/or failure to accommodate his handicap. This perception is unpersuasive in light of the employer's repeated correspondence urging him to take the training, whatever that training might have been. Despite Mr. Tarbox's failure to reply to Petitioner's October 22, 1996, inquiry about training (See Finding of Fact 48), Petitioner's perception of discrimination was not established as fact. From the evidence as a whole, it is more probable that any failure to train Petitioner was the result of his request to change shifts, and thus, lieutenant-supervisors in July or his frequent absences. The record does not make clear whether the re-orientation/re-training requirement was unique to Respondent, who returned in 1996, or applied to all four of the returning African-American officers restored in 1994, but Petitioner did not demonstrate that any White/Caucasian or non-handicapped employee ever got any more re-orientation/re-training than he did. He did not establish that any White/Caucasian or non-handicapped employee ever got any more re-orientation/re-training than the other restored African-American officers, handicapped or otherwise. He also did not establish that any other restored African-American officer, handicapped or otherwise, received more re- orientation/re-training than he did. Moreover, contrary to Petitioner's testimony, Sergeant Babula testified credibly that he had at least instructed Petitioner with regard to the new payroll forms when Petitioner changed shifts in July 1996. Payroll forms include calculating hours worked and monies owed. Testimony and business records also show Petitioner had five hours of drug policy training. (See Finding of fact 72). Also, Respondent did not discipline Petitioner for his failure to request leave of specific personnel as required by the only new personnel regulation, until after Petitioner had been instructed in writing to do so. These written instructions may not have constituted complete "re-orientation" or "re- training," but they were direct orders sufficient to instruct Petitioner what was expected of him. (See Findings of Fact 16, 29, 43, 46-47, 57-59). Lastly, based on Petitioner's testimony that even if he had known he was required by a new regulation to request leave from his lieutenant-supervisor he would not have followed that regulation but instead would have considered himself bound by his union contract and by the custom of asking for leave of anyone on his shift at the Jail, it appears that any failure of Respondent to specifically "train" Petitioner concerning new personnel regulations had no effect on his subsequent failure to comply with the employer's expectations concerning its leave policy. Petitioner had admitted in evidence a certified copy of a "Second Superceding Indictment" issued by a federal Grand Jury on February 27, 2001. It was not established that this was the same Grand Jury before which Petitioner testified in 1996. (See Finding of Fact 47). The indictment (which is only a charging document, not a conviction) named Nate Caldwell, Respondent's former Director; Samuel Krider, Respondent's former Assistant Director; Garry M. Brown, a former Captain with Respondent; and Charles Scott Simmons, a former Lieutenant with Respondent, for conspiracy to obstruct justice by violating 18 USC Section 1503, by hindering the court and jury in a federal civil rights action brought by Mr. Dickerson against the Alachua County Board of County Commissioners. Mr. Dickerson's federal case arose out of Mr. Dickerson's demotion in rank with Petitioner in connection with the 1994 escape. It was not established that any of the indicted officials held office during the time material to Petitioner's instant case, 1996- 1997, or that any of them had anything to do with Petitioner's 1996 leave disputes or 1997 termination. Indeed, it was established that Sands or Tarbox was Interim Director at all times material. The indictment mentions Petitioner and Captain King, a superior of Petitioner at all times material, but neither Petitioner nor Captain King were indicted. Despite the lack of clarity of Petitioner's and Mr. Dickerson's testimony, the undersigned infers from their testimony and the indictment that Petitioner testified concerning the same matters before the Grand Jury in 1996 and that prior to 1996 Petitioner had been a witness in Mr. Dickerson's federal discrimination case against the County Commissioners. However, Petitioner testified that his retaliation allegation herein is not based on his 1996 testimony before the Grand Jury. Rather, Petitioner asserted at hearing that he believed he had been retaliated against by his superiors in 1996-1997 for speaking at 1993 meetings of the County Commission concerning structural and staffing problems at the Jail, and otherwise he did not know why he had been retaliated against. (TR-Vol. I pp. 229-233).
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that Petitioner has not proven discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. 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 18th day of September, 2001.
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue Whether Respondent should have been suspended from her position with Petitioner as a school bus aide, and whether Respondent should be dismissed from her position.
Findings Of Fact At all times material to this proceeding, Petitioner, The School Board of Dade County (Board), was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida,1 pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Jamella R. King (King), was employed by the Board as a school bus aide from November 1989 until her suspension in July 1997. The position of school bus aide is governed by the Collective Bargaining Agreement between the American Federation of State, County, and Municipal Employees (AFSCME) and the Board. Since 1993, King's employment history has been characterized by excessive unauthorized absences, tardiness, and a continued disregard for administrative directives. In December 1993, King participated in a conference-for- the-record (CFR) because of her excessive unauthorized absences. Respondent was referred to the Employee Assistance Program (EAP), a confidential, collectively bargained for benefit which assists employees who may be having problems that, while not associated with employment, may be interfering with their performance. King refused to attend the scheduled counseling sessions. In February 1994, King participated in another CFR to discuss her attendance problem. The seriousness of the situation was brought to King's attention, and she was directed to improve her attendance. King was again referred to EAP, but failed to avail herself of these services. On or about January 22, 1996, a Transportation Operations Procedures Reminder (Reminder) was given to King. The Reminder set forth the Board's attendance policies and advised King that she currently had four and a half days of unauthorized leave. On April 30, 1996, another Reminder was given to King, addressing her attendance deficiencies. At that time, King had accumulated the equivalent of at least ten days of unauthorized absences in the 1995/1996 school year. From August 28, 1995, to May 28, 1996, King accumulated the equivalent of 21 days of unauthorized absences. On or about June 10, 1996, a CFR was held with King to review her continued disregard of proper attendance practices. King was again referred to EAP and was advised that she must improve her attendance. King was warned that her failure to improve could result in termination of her employment. King refused to follow this directive and continued to accumulate unauthorized absences. In July 1996, King signed in for work, but failed to go to her assigned route. King was issued a letter of warning for failure to complete her assigned route. King's supervisor directed her to improve her attendance. King failed to improve her attendance. As of October 10, 1996, King had accumulated 36 days of unauthorized absences for the preceding 12 month period. On October 29, 1996, a CFR was held with King concerning her attendance problem. At the CFR King received a reasonable directive from her supervisor to improve her attendance. King failed to follow this directive. In January 1997, King was removed from her assigned placement and placed on sub-status by her supervisor because King had become unreliable at her work site due to her continued unauthorized absences. Sub-status refers to a pool of aides who substitute as needed. From January 4, 1996, to February 10, 1997, King accumulated the equivalent of 47.5 days of unauthorized absences. On February 10, 1997, a CFR was held with King regarding her attendance problems. King was again directed to improve her attendance. From March 4, 1996, to April 15, 1997, King had accumulated the equivalent of 44 days of unauthorized absences. On May 27, 1997, a CFR was held with King regarding her continued attendance problem. King's continual unauthorized absences adversely impacted her work site because her coworkers were compelled to perform King's job duties. King's unauthorized absences also adversely affected the quality of transportation being provided to the students who ride the buses to which bus aides are assigned. These students have special needs that require the presence of an aide who can properly attend to those needs. Without a bus aide, there is the potential that the bus driver will be interrupted and distracted by those students. Additionally, when different bus aides appear on the bus, these students may feel uncertain and nervous, which may also unnecessarily distract the bus driver. The Collective Bargaining Agreement between AFSCME and the Board provides: ARTICLE II -- RECOGNITION * * * Section 3. . . .It is understood and agreed that management possesses the sole right, duty, and responsibility for the operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; . . . * * * ARTICLE V --DEFINITIONS * * * Section 27. Unauthorized Absence -- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accumulated sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there are extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. * * * ARTICLE XI -- DISCIPLINARY ACTION Section 4. Types of Separation Dissolution of the employment relation between a permanent unit member and the Board may occur in any of four distinct types of separation. * * * Excessive Absenteeism/Abandonment of Position -- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. . . . Disciplinary -- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. On July 23, 1997, the Board suspended King and initiated action to dismiss her from employment with the Dade County Public Schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining King's suspension without pay and dismissing her from her position with Petitioner as a school bus aide. DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998.
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
The Issue The issue presented is whether Petitioner should dismiss Respondent from her employment as a bus driver for an eight-day absence from work that was allegedly unauthorized.
Findings Of Fact Petitioner employed Respondent as a substitute bus driver on November 18, 2002. From February 10, 2003, through the date of the hearing, Petitioner employed Respondent as a bus driver. A bus driver is an educational support employee. Respondent was absent from work for eight days from February 2 through 11, 2005. The absence was not authorized. The unauthorized absence from February 2 through 4, 2005, comprised three days of unauthorized absence within one pay period. The unauthorized absence from February 7 through 11, 2005, comprised five days of unauthorized absence within one pay period. The eight-day unauthorized absence occurred during the regular school session. Respondent's supervisor scheduled a substitute bus driver to drive Respondent's assigned bus route. Respondent was absent from work for a vacation cruise in Chile. The unauthorized absence was not needed for medical or family reasons or for some other emergency. The terms of Respondent's employment are prescribed in the Collective Bargaining Agreement (CBA) between Petitioner and the Service Employee's International Union (SEIU). The terms of employment are further explained in a document identified in the record as the Bus Driver Handbook. Respondent had actual knowledge that she was entitled to only four personal days off from work with prior approval from Petitioner. Sometime in August or September 2004, an SEIU representative advised Respondent, in response to her inquiry, that the CBA authorized a maximum of four personal days off upon approval of Petitioner. Respondent did not disclose that she intended to be absent from work for a vacation while school was in session. On January 3, 2005, Respondent asked the dispatcher to approve eight personal days off for a vacation. The dispatcher explained that his authority to approve or disapprove leave requests was limited to requests for up to four personal days. Only the compound supervisor had authority to approve a request for authorized personal days in excess of four days. The compound supervisor denied Respondent's request before Respondent left for her vacation, and Respondent had actual notice of the denial. The denial was based in part on the ground that Respondent had no contractually authorized personal days in excess of four days during the regular school session. Even if she were to have authorized personal days in excess of four, the compound supervisor needed all of his bus drivers because school was in session. There was a shortage of bus drivers. February was a busy period in the school year. It was imperative that students have transportation to their schools. Absences in excess of authorized personal days must be requested on a form entitled Request for Leave of Absence, identified in the record as PCS Form 3-137. Respondent never requested a leave of absence on PCS Form 3-137. Rather, Respondent utilized the form authorized for requesting up to four personal days for the purpose of requesting a leave of absence of eight days. A request for a leave of absence on Form 3-137 would have been submitted to the director of transportation for Petitioner. The director never received such a request. Several aggravating circumstances are evidenced in the record. Respondent did not take the unauthorized absence for medical or family reasons or for some other emergency. Respondent took the unauthorized absence for her own leisure. Bus drivers, including Respondent, are nine-month employees. Respondent had other opportunities during the school year for vacations, including summer, a week at Thanksgiving, two weeks during Christmas, and a week during spring break. When school is in session, Respondent had no contractual right to more than four paid personal days. Respondent took the unauthorized absence with knowledge that her action would adversely affect her employer during a busy time of the school year. Respondent knew that the unauthorized absence would result in disciplinary action. Prior to her vacation, Respondent's supervisor suggested Respondent may want to remove her personal items from her bus before leaving for her vacation because she probably would face disciplinary action when she returned. Petitioner has imposed previous discipline against Respondent. Petitioner issued a letter of reprimand to Respondent for segregating black and white students on her bus.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violation and dismissing Respondent from her employment. DONE AND ENTERED this 3rd day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 3rd day of August, 2006. COPIES FURNISHED: Timberly S. McKenzie 446 Fifth Street, South Safety Harbor, Florida 34695 Laurie A. Dart, Esquire Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Timberly McKenzie 125 Rhonda Drive Clayton, Georgia 30525 Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
