The Issue The central issue for determination is whether the Petitioner is entitled to retirement benefits which she claims as surviving spouse. Although she does not provide evidence that her husband earned sufficient creditable service to vest in the system, Petitioner claims entitlement based on two alternate theories: that approximately 480 hours of sick leave accrued at the time of her husband's death should be added to his creditable service to meet the ten-year requirement; and her husband should have been eligible for disability retirement prior to his death, but was prevented by his employer from making a timely application.
Findings Of Fact Robert L. Carruthers was a member of the Florida Retirement System (FRS) at the time of his death on May 26, 1988. His membership commenced on September 13, 1979, when he was employed by the Brevard County District School Board. On June 30, 1980, he transferred to the Orange County District School Board and remained in that employment until his death. Joy Ruth Carruthers is the surviving spouse of Robert L. Carruthers. During his employment with the two school boards, Mr. Carruthers earned 8.75 years of creditable service in the FRS. Mrs. Carruthers is unaware of any other employment which might be credited as service. The Division of Retirement has no information of other employment which might be credited as service in the FRS. As the result of a complaint by Carol Stearns, the mother of Joy Carruthers, Robert Carruthers was placed on "relief of duty, with full pay and benefits" as of February 18, 1988, by the Orange County School Board. Prior to that time he had worked as an ROTC instructor at Evans High school. He was on the "relief" status at the time of his death. Sometime in late February 1988, Robert Carruthers became paralyzed from the waist down, and could not walk, as the result of a progressive illness. He had formerly walked with a cane. He had worked at the school up through the day he was given his "relief from duty" papers. Mrs. Carruthers claims that when he was placed on relief status, her husband was forbidden to go anywhere near the school or school board offices and was thus prevented from filing an application for retirement disability benefits. No witness substantiated that claim, and the letter from Dennis Reussow, Assistant to the Superintendent for Employee Relations and Administrative Services, to Mr. Carruthers states, ". . . . During this time you are directed to remain away from the Evans High School campus and to avoid contact with students assigned to the school. . . ." (Petitioner's exhibit #4.) This prohibition appears to be limited to the school and would not include the administrative offices. In early May the school board received a statement from Robert Carruthers' doctor that he would not be able to return to work indefinitely. Shortly thereafter, John B. Hawco, the Orange County School Board Administrator for Employee Relations, went to Carruthers' home with insurance forms. They were able to communicate and Carruthers signed some forms. It is not clear from the record whether a disability retirement application was completed on that occasion, but at some point a scribbled, illegible signature for Robert Carruthers was obtained on an FRS application for disability retirement. The application is dated May 25, 1988. The employer's statement of disability attached to the application was completed by John B. Hawco on May 26, 1988. When he completed the form, John Hawco did not know that Robert Carruthers had died the same day. The application form was date-stamped at the Division of Retirement on May 31, 1988. The employer's statement of disability is stamped June 6, 1988. (Petitioner's composite exhibit #3.)
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter its Final Order denying Petitioner's request for benefits. DONE and ORDERED this 28th day of June, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989. COPIES FURNISHED: Joy R. Carruthers Post Office Box 680-151 Orlando, Florida 32858 Stanley M. Danek, Esquire Office of General Counsel 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Petitioners', Joseph and Shelly Grainger, are husband and wife. They have one five year old son, Christopher Grainger. Joseph Grainger is the primary wage-earner for the family. At present, Joseph Grainger is unemployed due to a back problem. His previous employment was with a parcel shipping company. Due to his unemployment, Mr.Grainger is receiving approximately $653.00 a month in unemployment benefits. He will receive unemployment benefits until December, 1990, when his unemployment benefits terminate. As a recipient of unemployment benefits, Mr. Grainger must actively seek employment and is considered to be employable by the State. Proposed Rule 10C-1.11 Florida Administrative Code, implements federal and State law requiring the Department to furnish Aid to Families with Dependent children to indigent families whose principal wage-earner is unemployed (AFDC- UP). The law and the proposed Rule require the principal wage-earner to participate in the Job opportunities and Basic Skills program (JOBS). Florida has mandated that the spouse of the principal wage-earner also participate in the JOBS program, if funds are available. For AFDC-UP purposes, the Graingers constitute a three person assistance group. The assistance group determines the amount of benefits an applicant1 may receive if the applicant qualifies under the myriad eligibility requirements of the AFDC-UP program. The assistance group also sets the amount of income an assistance group may not exceed and still qualify for AFDC-UP. In this case, the Graingers' income limit is $294.00. Clearly, because of the amount of unemployment benefits Mr. Grainger is receiving, the Graingers do not now qualify for AFDC benefits and are not now receiving AFDC benefits which will be impacted by the proposed Rule. Since the Graingers are not now qualified for the AFDC-UP program and Mr. Grainger is employable, they have not established that they will suffer an injury from the proposed Rule's implementation of sufficient immediacy to entitle them to a hearing under s 120.54, Florida Statutes. See Agrico Chemical v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, (Fla. 1st DCA 1979); Florida Department of Offender Rehabilitation v. Jerrv, 353 So.2d 1230 (Fla. 1st DCA 1978); and Village Park Mobile Home Association v. State Department of Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987). Accordingly, the Graingers do not have standing to challenge the proposed rule. Based on the foregoing Findings of Fact and Conclusions Of Law and being otherwise fully advised in the premises, IT IS ORDERED that the Petitions filed in Case Nos. 90-5157RP and 5158R are dismissed and the Division's files closed. DONE and ORDERED this 2nd day of October, 1990, in Tallahassee, Florida. DIANA CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. COPIES FURNISHED: Cindy Huddleston Florida Legal Services, Inc. 2121 Delta Way Tallahassee, Florida 32303 Scott LaRue Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Liz Cloud, Chief Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Findings Of Fact On February 15, 1977, Petitioner was employed by the City of Clearwater as a full-time firefighter. He became certified as a firefighter on April 21, 1977, and was issued certificate number 5374. After receiving an associate's degree from St. Petersburg Junior College, Petitioner became eligible to receive firefighters' supplemental compensation benefits on July 1, 1981. After receiving a bachelor's degree from Eckerd College, Petitioner became eligible to receive additional firefighters' supplemental compensation benefits on May 1, 1984. Until July 2, 1986, Petitioner received his supplemental compensation benefits according to the appropriate level. On July 2, 1986, a hearing was held before the City of Clearwater Pension Advisory Committee as to whether Petitioner was entitled to a job- connected disability pension for injuries that he received in firefighting related activity. Following a finding by the Clearwater Pension Advisory Committee that Petitioner was entitled to the disability, the City of Clearwater forwarded to Respondent a Notice of Ineligibility for Supplemental Compensation Benefits, reflecting an ineligibility date for Petitioner of July 2, 1986. Based upon the Notice of Ineligibility, as well as the fact that Petitioner had received a disability that could not be corrected to the satisfaction of the Respondent, Respondent voided Petitioner's certification as a firefighter and terminated his supplemental compensation benefits as of July 2, 1986. Petitioner elected a retirement plan option offered by the City of Clearwater under which he extended his termination of employment date by the amount of time due him for vacation, holiday pay, and one-half of his accrued sick leave. By utilizing the vacation and sick leave time to which he was entitled, Petitioner extended his termination of employment date to October 8, 1987. Between July 2, 1986 and October 8, 1987 Petitioner occupied the status of an employee on vacation or on sick leave, i.e., he was on leave with pay. He received a paycheck at the same time that other employees of the City of Clearwater received theirs, and his paycheck carried the same deductions that other employees would have in their checks. It is uncontroverted that although Petitioner received his disability on July 2, 1986, Petitioner has received compensation from the City of Clearwater on an uninterrupted basis encompassing the period from July 2, 1986 through October 8, 1987 for duties that he performed as a full-time firefighter for the City of Clearwater Fire Departments his employing agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating Petitioner's supplemental compensation benefits from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith. DONE and RECOMMENDED this 23rd day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 23rd day of October, 1987. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Fredric S. Zinober, Esquire Village Office Park, Suite 107 2475 Enterprise Road Clearwater, Florida 33575 Lisa S. Santucci, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 =================================================================
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to a discriminatory employment action based upon his having a disability and, embodied within that question, whether he has a physical impairment which meets the legal definition of disability.
Findings Of Fact The Petitioner was employed by the Respondent, Florida Parole Commission, from July 2003 until January 29, 2007, when the Petitioner resigned. He had worked for the Respondent as a clerk on a part-time basis preparing inmate files for imaging. In October of 2003 he was promoted to records technician in charge of the imaging section. He was again promoted in 2004 to the position of Operations and Management Consultant II. He provided supervision for other employees and coordinated the work-load of the part-time workers (OPS workers) employed in the imaging section. The Respondent is an Agency of the State of Florida that determines which convicted criminals receive parole, the setting of the policies and conditions of parole and other supervised inmate release programs. It also investigates violations of supervision, establishing the terms and conditions of an inmate's release and has a reporting function to the Florida Board of Executive Clemency. On March 1, 2005, the Petitioner experienced the first of a serious of incapacitating physical episodes at work. He had to be removed from the office by ambulance for medical attention. Soon thereafter he was diagnosed as having acute dysautotonomia. Dysautotonomia is an incurable dysfunction of the autonomic nervous system, believed to be caused by a virus. The ailment include symptoms of gastrointestinal dysfunction, significant loss of blood pressure, extreme fatigue, panic attacks, as well as clinical depression. The Petitioner received emotional counseling for his depression and, according to Dr. Kepper, his treating physician, his incapacity is "intermittent and unpredictable." The Petitioner adopted a practice of sitting in his chair and elevating his feet when he had a relatively minor episode. The episodes might last for up to an hour. During a minor episode he would become extremely fatigued and dizzy, was unable to eat or speak coherently and could only lie down to rest until the episode has passed. In the event of a major episode he might experience blackouts, was unable to care for himself and required emergency medical assistance in order to receive intravenous fluids. During major episodes he would summon an ambulance, his girlfriend, or his father to take him to an emergency room for medical attention. The Petitioner's supervisor, Linda Summers, knew that the Petitioner was having these episodes and was resting in his office, prior to July 1, 2006. She allowed him to rest in his office with the door closed when he experienced a minor episode. On June 5, 2006, the Petitioner begin feeling badly and felt that he was about to "pass out." His supervisor, Ms. Summer, asked him if she needed to call an ambulance, as had been done in the past, and he declined. She was concerned about him and suggested that he sit in his office with the door closed until he felt better. Sometime between 3:30 and 4:00 p.m., that day he begin feeling better and said he was going to attempt to drive to the emergency room. Ms. Summers was concerned about his safety and tried to dissuade him. He left, however, but shortly thereafter returned and an ambulance was called to take him to the emergency room. After this, during his episodes, he adopted a practice of closing his office door and putting up a "do not disturb" sign. The Respondent accommodated the Petitioner in this practice, although he had not made a formal request for accommodation, over a period of approximately one and one-half years. The Department of Management Services (DMS) has a rule which was in effect prior to the Petitioner's hiring, which requires that an employee be absent for five consecutive days in order to be eligible to receive donated sick leave. The Respondent has followed this rule since before the Petitioner was hired and applied its standard to all employees. The only occasions when the Respondent has waived this rule-based policy for an employee, was twice in favor of the Petitioner in July and in August of 2006. On those occasions he received 132 donated sick leave hours. Even though the Respondent consistently followed this DMS requirement, it did not actually update its procedure in its personnel handbook to reflect the rule. The Respondent takes the position that if there is a discrepancy between its personnel handbook and the adopted administrative rule, then the rule controls. In any event, on October 10, 2006, the Respondent issued a Revised Procedure Directive, Number 2.02.15, entitled: Attendance and Leave. This directive updated the Respondent's sick leave policy to correspond with its actual policy and with the current DMS rules. It updated the Respondent's Americans With Disabilities Act Policy to reflect established agency policy. Pursuant to this policy (or rule interpretation) the Petitioner received donated sick leave from 18 Respondent employees, including donations from the general counsel, and from the Petitioner's supervisor, in a total amount of 273 hours. The Respondent requires a note from a physician if an employee is absent due to illness for three days in a 30-day period. The Respondent does not deem it a good business practice to waive that requirement nor did it choose to waive it as a reasonable accommodation. On June 16, 2006, the Petitioner suffered a debilitating episode at his office at around 9:00 a.m. He went into his office and put up a "do not disturb" sign for about 30 minutes. A birthday party was occurring in the office at that time and several employees commented concerning their wish to go into their offices put up such a sign and take a nap. Ms. Summers discussed this with the Respondent's Chairman, the former Director of Operations, and the former Human Resources Administrator, Beatriz Caballero. Ms. Summers was thus advised that this could not continue. She therefore talked to the Petitioner and told him that she was sorry that he felt badly but that she could no longer allow him to put up a do not disturb sign as other employees were negatively affected by it and, inferentially, she felt that it affected employee morale. Ms. Summers also established that she and the Petitioner had discussed the Petitioner's doctor's note and what it stated concerning the intermittent nature of his episodes. She told him that the doctor needed to make suggestions about what he should do when he suffers one of the episodes. She also suggested to Mr. Duncan that he probably should go home when he has one of the sick episodes. His response was that as long as he could sit down for a while and be quiet he would start feeling better and that he would hate to drive all the way home and then have to come back. He then said that he would simply go out to his truck in the parking lot and recover from an episode if one occurred. Ms. Summers told him that was an acceptable option and that it was a matter for his own decision. She also told him to be sure to tell her where he was going so that if he did not come back within a reasonable time she could go look for him. She was concerned about his condition and safety. She also told him to leave her a note telling where he had gone and the appropriate time when he left. He indicated that he would do so. At the end of June 2006, Ms. Summers informed the Petitioner that his absences were affecting his productivity and negatively affecting his supervision of the imaging section. This was because the OPS staff, mostly college students, were observed sitting around talking, talking on cellular phones, coming in late and leaving early because of a lack of supervision. It was the Petitioner's responsibility to supervise them and the situation had been deteriorating, in relation to the Petitioner's absences. Director of Operations Gina Giacomo found that the imaging section was not operating at an optimal level because the OPS employees, were undisciplined, and good productivity was not being achieved because of a lack of oversight. She attributes this, in part, to the Petitioner's habit of arriving at work at 7:00 a.m. but leaving at 3:30 p.m. After 3:30 p.m. to the end of the day his employees were unsupervised. The OPS employees were taking very long lunch breaks, leaving early and coming in late and not accounting for their work hours properly. It was the Petitioner's duty to approve the employee's time cards. As a result of the Petitioner's lack of oversight, three of the four employees were under-paid. Also, there were over expenditures as to OPS employees, resulting in a deficiency in the Agency's OPS budget, because the Petitioner allowed some OPS employees to work 35-40 hours per week when they were only supposed to work around 20 hours per week. This had an obvious adverse impact on the Agency's budgeting operations. Because of the employee attendance problems and time- keeping problems, the Respondent Agency initiated a time clock procedure for the imaging section around the end of September 2006. On August 1, 2006, the Petitioner sent the Respondent a written request entitled "Request for Reasonable Accommodation Under the Americans With Disabilities Act", requesting that: 1) he not be required to provide a physician's note when sick as it related to his pertinent disorder; 2) that he be permanently exempt from the five-day rule for sick leave donation as it related to his current disorder; and 3) that he be allowed to close his door while having a minor episode. The Respondent's Human Resources Administrator responded to this request by a memo dated August 8, 2006, declaring that the Petitioner's request to receive a permanent exemption from the five-day rule for sick leave donation eligibility was not a reasonable accommodation request and would not be granted. The Respondent also declared, through the Human Resources Administrator, that the sick leave donation policy is designed for all State of Florida employees to follow. The Respondent contends that the Petitioner's request for the Respondent to exempt him from a medical inquiry (i.e. the provision of a doctor's note or explanation for his illness and/or absence) is also unreasonable. The Respondent took the position that requiring the provision of a physician's note, as it relates to the Petitioner's current disorder, is job-related and consistent with business necessity concerning an employee's ability to perform essential job functions and whether he will be impaired by a medical condition. It is therefore important for an employee's physician to document the employee's need to be absent from work, as well as his ability to return to work and his ability to perform his job functions. The Respondent in essence took the position that while the ADA requires reasonable accommodation to enable qualified disabled persons to perform the essential functions of their jobs, that donated sick leave is not related to ADA requirements, but rather is a benefit provided under state personnel rules. The Respondent did however suggest to the Petitioner that he confer with his supervisor and work with her in trying to make up his missed hours so that he would not have to suffer so many leave-without-pay hours. The Respondent informed the Petitioner that the DMS rule involved clearly states that there is a five-day waiting period before donated sick leave can be used. It acknowledged that the Respondent's internal procedure directive did not specify the five-day rule because it was inadvertently omitted. Because of that oversight the Petitioner's last request dated July 28, 2006, was honored. Thereafter, the internal procedure directive was to be corrected by the Respondent in order to reflect enforcement of the five-day rule for sick leave donation. The Respondent informed the Petitioner that he must follow the requirement for sick leave donation requests in the future. Concerning the Petitioner's request for the accommodation of closing his door while he was having a minor episode, the Respondent told the Petitioner that the request would be reviewed further, but that the Respondent needed information from the Petitioner's physician specifying how the accommodation would assist the Petitioner in performing his essential job functions. The Respondent informed the Petitioner that the documentation needed from his physician should specify the duration the door should be closed, as well as providing any useful accommodation suggestion the doctor might have as it relates to the Petitioner's condition and his request. The general counsel for the Respondent made a determination that the Respondent should not allow the Petitioner to shut his door and remain on the premises due to liability concerns as well as concerns for the Petitioner's health. Instead of providing the requested documentation from the physician to support his accommodation request, on August 17, 2006, the Petitioner filed a Complaint of Discrimination with the Florida Respondent on Human Relations. Before filing that Complaint he never made any complaint to his supervisor concerning any perceived discrimination, or as to being treated differently due to his alleged disability. The Petitioner provided a note from Dr. Kepper, his physician, on August 21, 2006, in which the physician stated that the Petitioner was unable to perform his job from August 16, 2006 to August 30, 2006. There were multiple absences from work during that period of time, as well as abbreviated work days due to the Petitioner's medical condition and other reasons. A meeting was held on December 7, 2006, between Linda Summers the Petitioner's supervisor, the Petitioner, and the Director of Operations, Gina Giacomo. Ms. Giacomo discussed with the Petitioner the need for him to communicate better with his supervisor and for him to come to a better understanding about the importance of the "system" and people not being informed of it. She also addressed the fact that his unit was a very undisciplined unit and that the productivity was not what it should be due to lack of oversight. She attributed much of this problem to the fact that the Petitioner came into work at 7:00 a.m. and left at 3:30 p.m. She determined that there was no reason why he had to start his duties at 7:00 a.m. and changed his work hours so that thenceforth he would work from 7:30 a.m. to 4:30 p.m. with an hour for lunch. She did this in order that he might more closely supervise the part-time, OPS, college-student employees who needed more structure and oversight in the work place. Ms. Giacomo also discussed the fact that the Petitioner's supervisor, Ms. Summers, was frustrated concerning his attendance. It caused difficulty when he was absent for frequent days or partial days because it is such a small agency that it was difficult for other staff members to perform his duties with full-time duties of their own to perform as well. She therefore discussed his schedule changing, her concerns about his working more closely with his supervisor, and his need to inform all of his staff that their schedules were going to change. They were going to thereafter perform all their OPS hours between 7:30 a.m. and 4:30 p.m. and to function more as a team. She also informed the Petitioner that the time-sheets which had been used to account for his employee's work hours were not accomplishing their purpose and that all but one of the time-sheets that he had approved were incorrect. Consequently, she announced the inauguration of a punch-clock procedure for people arriving at and leaving work, so that an accurate accounting of work hours and employees' pay could be accomplished. During the discussion at the December 7th meeting, the Petitioner informed Ms. Giacomo concerning when he could address the time sheet problem, the OPS staff schedule change, and certain other issues. She wanted a time period from him as to when the matters could be cleared up and corrected. That meeting lasted approximately 45 minutes. She remained in the building except during the lunch time period that day but carried two cell phones with her at all times, her personal one and an agency-issued phone. When she got back to her office by mid-afternoon, however, the Petitioner had left with her executive assistant a medically-related form that he had to have already had in his possession before the meeting, which indicated that he would not be able to work from approximately December 4th, to January 9th. He had been present at the meeting and talked about the above-referenced issues without ever mentioning to his supervisor or to the director his need to be off from work for more than a month. He never addressed the issues he was instructed to handle with regard to the OPS employee schedule, etc., all of which finally had to be handled by Ms. Giacomo and Ms. Summers. Upon assuming her duties in September 2006, Ms. Giacomo became very concerned with the lack of professionalism and the management of the imaging section under the Petitioner's supervision. She had four different meetings to try to determine a division of the duties of the Petitioner's position which could be performed by other persons in the office who also had their own full-time duties, because of the Petitioner's absences. Over the course of four or five meetings she re-arranged and re-assigned the functions of the office, on an informal basis, so the functions the Petitioner normally would be responsible for were being taken care of by other staff members. The Petitioner never actually requested assignment to other duties in the Agency as an accommodation. Ms. Giacomo, however, as found above re-assigned functions of his position to other people. She had a meeting with all OPS workers and the permanent, full-time staff and announced that she wanted the Petitioner to be able to be at the meeting, but that it had already been delayed for two weeks because of his absence, and that she needed to proceed and restore the full functioning of the office. She announced that he would not be coming back to his supervisory position but would be greeted "with open arms." She also announced that the Petitioner would be given the same amount of pay, with the same job title, but would be re-assigned to as yet undetermined duties with the Agency. She then informed everyone what each person was going to be doing in terms of performing parts of the functions of the Petitioner's position, so that the office and Agency could function better. On January 16, 2007, the Petitioner provided a note from Dr. Kepper excusing him from work beginning January 10, 2007, stating in effect that he should be excused from work from that date forward until Dr. Kepper could determine whether he was fit enough to resume his normal duties. Due to his medical condition and treatment the doctor stated that the Petitioner was unable to perform his regular duties and would continue to be treated. The doctor stated that the Respondent would continue to be provided updates on the Petitioner's work status, but that the Petitioner, at that time, would have to be placed on out-of-work employment status. Thereafter, on January 29, 2007, the Petitioner submitted his resignation letter. The Petitioner was never terminated nor was he asked to resign by the Respondent. No disciplinary action had ever been taken against him. The Petitioner never asked the Respondent concerning the possibility of being moved to another job or position within the Agency. The evidence shows that between March 2005 and January 2007, the Petitioner worked 3,674.25 hours out of 4,064 regularly scheduled work hours.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the party, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 21st day of September, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 21st day of September, 2007. COPIES FURNISHED: Wilton B. Duncan, III 2728 Oakleigh Court Tallahassee, Florida 32399-2350 Bradley R. Bishoff, Esquire Florida Parole Commission 2601 Blair Stone Road, Building C Tallahassee, Florida 32399-2450 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Colton Whitmire was born on July 4, 2012, at Holmes Regional Medical Center in Melbourne, Florida. He was a single gestation. NICA attached to its motion a Certification of Medical Records signed by Dawn Brewer, Client Service Representative from Holmes Regional Medical Center, and a one-page medical record for Colton. The medical record shows that Colton was a single gestation and his birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from Holmes Regional Medical Center showing that Colton’s birth weight was less than 2,500 grams.
The Issue The issue in this case is who is entitled to payment of remaining retirement benefits due to James E. Brandon, deceased.
Findings Of Fact James E. Brandon was employed by the Hillsborough County Parks and Recreation Department and was a participant in the Florida Retirement System (FRS). Mr. Brandon had a long standing relationship with Dennis A. Barga. In February 1995, James E. Brandon applied for FRS disability benefits due to a medical condition. On the application for disability benefits, James E. Brandon designated Dennis A. Barga as his primary beneficiary. The application for disability benefits was approved in June 1995, with an effective retirement date of March 1, 1995. James E. Brandon elected to receive benefits under "Option 2" of the FRS, which provides for a lifetime benefit to the covered employee. Option 2 also provides that, if the covered employee does not survive for the ten years following retirement, payment is made to a designated beneficiary for the remainder of the ten year period. James E. Brandon died on August 28, 1995, of the condition which resulted in his disability. James E. Brandon did not personally receive any of his disability benefits. By letter dated September 29, 1995, the Division notified Mr. Barga that he was entitled to receive the remaining benefit payments for the ten year period. At the end of September, the Division sent two checks to the home of James E. Brandon. One check covered the initial benefits period from March 1995 through August 1995. The second check was for the September 1995 benefit. The checks were not returned to the Division and apparently were cashed or deposited. On October 10, 1995, the Division was notified by William Brandon that his brother, James E. Brandon, had completed a form amending his designation of beneficiary and that the form had been filed with the Division. The Division searched its files and located a form, FRS M-10, which was apparently filed on July 25, 1995, by James E. Brandon, and which amends his prior designation to identify sequential beneficiaries. The amended beneficiaries, in order, are William W. Brandon, III, Daniel A. Brandon, and Victoria Weaver Stevens. The Brandons are family members of the deceased. Ms. Stevens is a long-time family friend and was also employed by the Hillsborough County Parks and Recreation Department. FRS Form M-10 is the form adopted by the Division for use by a non-retired FRS participant in designating a beneficiary. Form M-10 does not require execution before a notary public. FRS Form FST-12 is the form adopted by the Division for use by a retired participant in designating a beneficiary. Form FST-12 requires execution before a notary public. The amendment of the beneficiaries should have been executed on a Form FST-12. The Form M-10, which was filed on July 25, 1995, was provided to James E. Brandon by the human resources office of the Hillsborough County Parks and Recreation Department. The form was obtained by Victoria Weaver Stevens apparently at the request of the deceased. The filing of the improper form was through no fault of James E. Brandon. The Petitioner suggests that the signature on the Form M-10 is a forgery. There is no credible evidence to support the assertion. The evidence establishes that the deceased sometimes included his middle initial in his signature, and other times did not. The Petitioner suggests that during the last weeks of the deceased's life, he was overmedicated, was often unaware of his surroundings, and was likely manipulated into changing the designated beneficiaries. There is no credible evidence that James E. Brandon was mentally incapacitated and unable to understand the import of his decisions at the time the amendment was filed with the Division.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order dismissing the Petition of Dennis A. Barga. DONE AND ORDERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM F. QUATTLEBAUM 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 31st day of December, 1997. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 David T. Weisbrod, Esquire 601 North Franklin Street Tampa, Florida 33602 Stanley N. Danek, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Thomas Frost, Esquire 7901 Fourth Street North Suite 315 St. Petersburg, Florida 33702
The Issue The issue for determination is whether the Western and Southern Financial Group (Respondent), violated the Florida Civil Rights Act of 1992 (FCRA) in terminating employment of Stephen Howe (Petitioner) without reasonable accommodation. § 760.10, Fla. Stat.
Findings Of Fact Respondent is the Western and Southern Life Insurance Company, a subsidiary of Cincinnati-based Western & Southern Financial Group Inc. Respondent is a home service company that requires sales representatives to call on policy holders on a regular basis for sales and service. The district sales office in Pensacola, Florida, is one of 181 sales offices headed by a district sales manager. Jim Swaim served as the district sales manager for Respondent’s Pensacola Office from August 5, 2002 until November 3, 2003. Petitioner Stephen Howe became a Western and Southern sales representative on January 25, 1993, compensated pursuant to a Sales Representative Agreement of that same date, inclusive of the incorporated Sales Representative Schedule of Commissions, setting forth his compensation schedule and job duties. He intermittently served as a sales manager, but voluntarily became a sales representative pursuant to a Sales Representative Agreement dated June 28, 1999. He remained a sales representative until his termination on February 3, 2003. Petitioner was admitted to the hospital and therefore absent from work beginning August 28, 2002, due to an unrelenting headache and elevated blood pressure. The conditions cited by Petitioner's physician were sleep apnea and pheochromocytoma (pheo), which is a tumor on the adrenal gland that causes excess adrenaline production. Treatment for pheo usually takes four to five weeks, and is conducted on an outpatient basis. Petitioner’s disability was documented in September 2002, by Dr. Shawbilz, a neurologist, who reported at that time to Respondent personnel and described Petitioner’s dizziness, syncope and headaches. It was noted that Petitioner could not drive at that time due to obstructive sleep apnea, syncope and headache. Petitioner's family doctor, Dr. Mayeaux, prepared a report to Respondent on October, 2002, defining Petitioner's condition as serious and “requiring a period of incapacity from work and subsequent treatment”. Petitioner’s condition included high blood pressure, syncope, tremor, diaphoresis and palpitations. On October 2 and 8, 2002, Dr. Mayeaux sent a letter to Lori Mitchell, a registered nurse and the head of the Benefits Department of Respondent, outlining Petitioner's severe uncontrolled hypertension and a rare debilitating adrenal tumor. The doctor did not feel Petitioner should be working at that time. Later, in further correspondence dated October 28, 2002, Dr. Mayeaux opined Petitioner should not operate a motor vehicle at that time. On November 18, 2002, Dr. Mayeaux forwarded another letter to Respondent's benefit department outlining additional concerns about Petitioner’s syncope, chest pain, palpitations, diaphoresis, and disability to perform meaningful work or drive. On December 19, 2002, Dr. Mayeaux forwarded another letter to Respondent noting the now determined severe sleep apnea of Petitioner as a basis for daytime somnolence and drop attack/syncope. He again opined that Petitioner needed surgical relief from ear, nose and throat (ENT) issues to address sleep apnea prior to return to work. Respondent initially denied insurance for the surgery to address these issues while also denying Petitioner’s disability insurance claim. On December 30, 2002, Dr. Mayeaux again wrote to Lori Mitchell and noted Petitioner’s additional adrenal gland tumor. He opined, "[Petitioner] may not work until these problems have been satisfactorily resolved." On January 23, 2003, Mayeaux again wrote to Respondent’s Benefits Department continuing his disability opinions and noting, "aggressive surgical evaluation and intervention is underway at this time." Petitioner’s blood pressure continued to be labile and uncontrollable, but Mayeaux hoped to control this with surgery for Petitioner’s tumor. Sleep apnea, another of Petitioner’s disabilities, exists when a sleeping person experiences episodes where the individual is without breath. Petitioner did not respond well to the non-surgical treatment for this disorder, in which a machine is used to force air into the sleeping person’s breathing passages. The machine is called a “C-PAP”. Such treatment was prescribed for Petitioner without the best of success. Mayeaux hoped future surgery for the sleep apnea would help Petitioner’s severe case of this disorder by enlarging Petitioner’s breathing airway. The sleep apnea symptoms would have prevented him from driving in the course of his work. Petitioner’s wife observed Petitioner’s condition worsening beginning around August 2, 2002, when Petitioner would come home once or twice a day while working to take a nap. The tumor on Petitioner’s adrenal glands substantially limited major life-sustaining activities. As established by deposition testimony of Dr. Mayeaux, hormones secreted by Petitioner’s adrenal glands were affected by the tumor on his adrenal glands. There was evidence in Petitioner’s blood of over-production of adrenaline, with a by-product being excessive production of epinephrine. That he considered this to be a substantially limiting factor is one reason Mayeaux opined that Petitioner should not be working in his then-existing condition. Deposition testimony of Lori Mitchell establishes that she wrote a letter to Petitioner on September 9, 2002, requesting disability information for short-term disability. Subsequently, she sent a letter to Petitioner approving disability beginning September 13, 2002 Per Petitioner’s medical release provided to her, she had the ability to consult with Dr. Mayeaux. Mitchell was aware of all information received from Dr. Mayeaux. Mitchell was aware that Respondent's Family Medical Leave Act (FMLA) Department sent Petitioner a letter telling him that his absence of August 28, 2002, through October 8, 2002, was recorded as a "serious health condition." She also knew short-term disability was authorized for Petitioner through her department for the period ending October 8, 2002, following a review of his medical records. Short Term Disability is defined under Respondent's plan for associates "who are regularly unable to per form normal duties of their regular occupation due to sickness or injury." Mitchell was also aware of the "pheo" tumor, which can develop on an individual’s adrenal glands. She understood Dr. Mayeaux’s letter to her describing the tumor in Petitioner’s case as "debilitating" to mean "impairing him." She understood Dr. Mayeaux's letter of October 10, 2002, to her to mean Petitioner was prevented "from performing his daily activities" by his symptoms. Mitchell’s supervisor, Noreen Hayes, explained that the approval of the extension of short-term disability benefits through November 30, 2002, was based on "all doctor's notes associated with [Petitioner’s] condition." Mitchell was familiar with Dr Mayeaux's December 5, 2002 letter concerning the sleep apnea and breathing issues of Petitioner, as well as other letters from Mayeaux on December 30, 2002, and January 23, 2003. She identified a Respondent Medical Leave of Absence form executed on December 12, 2002, where his doctor opined Petitioner had "a serious health condition that makes you unable to perform the essential functions of your job" and that the condition would continue until rectified. Dr. Terrell Clark is Respondent's Vice President and Medical Director. He recalled information received regarding high blood pressure and sleep apnea to "evaluate what time might be appropriate for [Petitioner’s] disability." He was also aware of a concern for brain problems due to Petitioner’s head CT scan. He was aware of the "pheo" tumor diagnosis on Petitioner’s adrenal gland and resultant production of abnormal hormones. He also agreed that the condition was very treatable. He also was acquainted with the correspondence of Dr. Mayeaux on Petitioner’s behalf. Dr. Mayeaux opined it would be possible for Petitioner to have performed an office-type job that did not require driving. His ability to provide service to his clients was otherwise unimpaired. During August, 2002 to February, 2003, Petitioner was in constant contact with Respondent personnel and his clients by phone. In the words of Karen Howe, "he was always on the phone" until the end of his employment. The phone was part of his normal job activity. During this same time, Petitioner filled out all his clients’ paperwork and paperwork for their families in regard to financial matters. He was also able to give advice to clients as he always had. There are clerical positions in the field offices of Respondent. In Cincinnati, Ohio, Respondent has hundreds of clerical positions that do not require driving as an essential function of the job. The company has 1,900 clerical sedentary positions. Most of these do not require driving. Dr Mayeaux sent a letter to Respondent dated January 30, 2003, stating that Petitioner could return to work so long as he did not drive. He also told Petitioner earlier that he could work if someone else drove. No direct credible evidence was presented that having Petitioner's wife drive him would not result in a reasonable accommodation for Petitioner. The company does not insure the vehicle Petitioner drove as part of his work. There is also no direct credible evidence that Respondent required Petitioner to be covered with insurance over and above what he and his wife ordinarily carried on their vehicle. No evidence was presented assailing the driving abilities of Petitioner’s wife. Petitioner's job did not require that he drive at any certain time. His wife often rode with her husband while he was meeting with his clients or Respondent personnel during the years of his employment. She routinely went by the local office, saw his manager, and no one ever objected to her riding with Petitioner. Petitioner’s wife asked his district manager, on her husband’s behalf, three or four times if she could drive her husband after he was told by his doctor not to drive. Her requests were denied. She was willing to do this without pay, with the vehicle he customarily used, that they both owned, and kept well insured. She drove him to his last day at work where, when informed that he was fired, he cried. Thomas Johnson is the company vice president responsible for administering Respondent’s leave-of-absence policy. Respondent personnel monitor when an employee "can return to work.” Johnson initially received a form noting Petitioner began his leave of absence as a result of illness on August 28, 2002. Johnson receives information from a Respondent committee that meets to discuss whether to allow accommodations for injured employees. Pursuant to the committee’s action, Johnson notified Petitioner that Short Term Disability was approved through November 30, 2002. Johnson wrote a letter on January 23, 2003, to Petitioner to return to work on full-duty status on February 2, 2003, or be terminated. This letter was based on a meeting of his department’s medical and legal personnel. At the meeting, which resulted in Johnson’s letter to Petitioner, all of those in attendance decided not to accommodate Petitioner. At that meeting they never discussed restructuring or modifying Petitioner’s position or reassigning him, even though the only restriction Johnson was aware of was the restriction on Petitioner’s driving. At that meeting, they did discuss time for Petitioner to provide medical information in regard to Petitioner’s fitness to return to work. As a result of the denial by the committee of further Short Term Disability Leave, Petitioner's right to a further leave of absence ended, absent a "fitness for duty" report. Johnson informed Petitioner of the Respondent committee’s action by another letter dated January 27, 2003, sent from Cincinnati, Ohio, to Petitioner in Pensacola, Florida, through regular post office mail to a numbered post office box. Per that letter, Johnson required that Petitioner have the requisite fitness for duty report by February 3, 2003, or be terminated. Petitioner was not provided the appropriate form for the report as part of this communication and he was not given any time to obtain the information, yet he was terminated for not having it. Johnson instructed Petitioner's District Manager on February 3, 2003, that Petitioner could not work that day because of "unauthorized leave of absence". Johnson sent a letter on February 3, 2003, terminating Petitioner. The clause Johnson used to terminate Petitioner was "absence for two days without notice." Johnson received a letter from Dr. Mayeaux dated January 30, 2003, after he had sent his February 3, 2003 letter to Petitioner. Mayeaux’s letter stated that Petitioner could work as long as he did not drive. Petitioner showed up for work on February 3, 2003, with only the letter of January 23, 2003. The employment agreement provided by Respondent to Petitioner does not spell out what medical evidence is to be provided to prevent application of the "unauthorized leave of absence" clause used to terminate Petitioner. By company policy, there is no right for an unpaid leave of absence because of a disability claim. Johnson was fully informed and received regular information from Lori Mitchell regarding Petitioner’s condition as reported by his doctors to her. When an employee such as Petitioner is absent from the office, this fact is reported to Respondent’s home offices without notice to the affected employee. Dean Vonderheide is the director of Respondent’s benefit department. His testimony establishes that the Summary Plan Description given to Respondent employees for Short Term Disability provides no information regarding where an employee can get the forms to file claims. A terminated employee is not entitled to long-term disability benefits. Neither Lori Mitchell, R.N.; vice president Dr. Clark; or vice president Johnson made any effort to contact Petitioner or his doctor to supplement or add to what was included by Dr. Mayeaux in his correspondence dated January 30, 2003. Petitioner was wrongfully terminated by Respondent on the basis of Petitioner’s disability without fair consideration by Respondent of Petitioner’s request for accommodation, i.e. , that his wife be permitted to chauffer Petitioner in the course of his continued employment or that alternative employment for Petitioner within Respondent’s company be considered by Respondent. Such provision had been made for a former salesperson of Respondent. Petitioner lost wages from his termination of employment with Respondent up and through his death on July 6, 2003. The income tax records in evidence show that Respondent paid Petitioner a total of $42,057.09 in the taxable year 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 16th day of November, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2005. COPIES FURNISHED: Daniel Stewart, Esquire 4519 Highway 90 Pace, Florida 32571 Alice M. Fitzgerald, Esquire Western & Southern Financial Group 400 Broadway Cincinnati, Ohio 45202-3341 Linda G. Bond, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
The Issue The issue in this matter is whether Petitioner is entitled to retroactive disability retirement benefits from June 1, 1999, through April 30, 2001.
Findings Of Fact Petitioner was a bus driver employed by the Lee County School Board. He has a tenth-grade education and is of normal intelligence. Petitioner had worked for Lee County Schools for over eight years when he had a work related injury in March 1997. Upon settlement of his claim for workers' compensation, he resigned his position with Lee County Schools on June 22, 1999. On April 20, 2001, Petitioner, for the first time, sought information regarding disability retirement benefits from his personnel office and met with Griffin for that purpose. At that time, Petitioner had 8.33 years of creditable service. After meeting with Petitioner, Griffin sent an e-mail to Mark Sadler (Sadler), who at that time served as the Disability Administrator for the Division. During the e-mail exchange, in-line-of-duty disability benefits were not mentioned. Regular disability benefits under the FRS require that a member be "vested." In this case, that required a member, including Petitioner, to have ten years of creditable service (it has since been changed by the Legislature to six years). In-line-of-duty disability benefits, on the other hand, were available from the first day of employment. On August 1, 2001, Petitioner contacted the Division to inquire about benefits. As a result of the call, the Division sent a disability handbook and application to Petitioner on August 14, 2001. The disability handbook contains a description of all disability benefits available to members, as well as requirements for obtaining those benefits. On January 25, 2002, the Division received an application for in-line-of-duty disability benefits from Petitioner. After receiving and reviewing the relevant materials, the Division approved his application for benefits and added him to the retired payroll effective February 1, 2002. Shortly after being approved, Petitioner requested the Division to re-establish his effective date of retirement to April 1, 2001, based on the e-mail exchange between Griffin and Sadler. After reviewing Petitioner's file, the Division determined that he had attempted to apply on April 20, 2001, and accordingly re-established his effective retirement date as May 1, 2001, the first day of the following month. Shortly after the Division changed his effective retirement date to May 1, 2001, Petitioner then requested the Division to re-establish it as June 1, 1999, to correspond with his resignation. Howell again reviewed his file. Since there was no evidence of any earlier attempt to apply for benefits, the Division correctly determined that Petitioner's May 1, 2001, effective date was accurate. On July 23, 2003, the Division issued the Final Agency Action denying his request for a June 1, 1999, effective retirement date, and Petitioner timely appealed. According to the rules adopted by the Division, when a member applies for retirement benefits more than 30 days after his or her termination, the effective retirement date is established as the first day of the month following receipt of the application by the Division. The Lee County School System does not routinely provide termination or worker's compensation information to the Division, unless it is in connection with an application for benefits. Since Petitioner made no application for benefits, the Division was not aware that Petitioner's employment was terminated as of June 22, 1999, until the e-mail exchange in April 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner's request for an effective retirement date of June 1, 1999. DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 29th day of March, 2004. COPIES FURNISHED: William C. Strickland 8230 Ebson Drive North Fort Myers, Florida 33917 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Prior to the hearing a short pre-hearing conference was held. It was stipulated to by the parties that Hadden was a member of the Florida Retirement System, had over 17 years of creditable service, and that Hadden could no longer perform the duties of an automotive mechanic because of his physical limitations. Hadden had applied for regular disability retirement benefits. The Division controverted Hadden's eligibility for such benefits on the basis that while Hadden could not perform the duties of an automotive mechanic that his physical condition did not prevent him from rendering useful and efficient service to the State in some other capacity calling for less strenuous activity.
Findings Of Fact Hadden is a white male, 51 years old, who worked as an automotive mechanic for Polk County for over 17 years. Hadden had had no formal schooling and can read and write very little. From Hadden's testimony and observations at the hearing regarding Identification of documents, it was apparent Hadden is functionally illiterate. Evidence was received that the former employer had indicated that there were no positions available for which Hadden was qualified. Hadden testified that he did do yard work at his home, mowing the lawn with a riding mower and weeding flower beds. However, Hadden indicated that if he became hot he would suffer pains in his chest and have to take his medication and lay down and rest for several hours. It appeared that even light physical work was beyond his capacity to perform on a regular continuing basis. Doctors' reports supporting Hadden's retirement application indicate that Hadden's physical condition will not improve and will probably worsen. Doctors restrict his activity to "mild" activity which is not strenuous or continuous. This would be consistent with Hadden's testimony regarding yard work. It should be noted that medical reports indicate that Hadden's heart condition is complicated by a nervous condition which restricts his ability to perform tedious manual work.
