The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2001.
The Issue Whether the Petitioner was absent from work without authorization for three consecutive workdays so that she is deemed to have abandoned her position and to have resigned as a Career Service employee.
Findings Of Fact Petitioner Viola D. Cooper began her employment with Respondent Department of Health and Rehabilitative Services on October 19, 1987. She held the position of Support Service Aide at the Landmark Learning Center in Opa Locka, Florida. When she was hired, she was given a copy of the Department's Employee Handbook which contains attendance and leave policies. She signed a receipt for the handbook which acknowledged that she understood it was her responsibility to review the handbook in detail. On several occasions, Petitioner was counseled by her immediate supervisor regarding the proper procedures to follow when Petitioner would be late reporting to work and when Petitioner wanted to use some of the leave time available to her. Additionally, on August 8, 1988, Petitioner received a written reprimand from her supervisor for being absent from work without authorized leave. That written reprimand recited that Petitioner was scheduled to work on July 5, 1988, and that she failed to come to work and failed to call. She was, accordingly, assessed eight hours of leave without pay for that particular day and was advised that a future violation of absence without authorized leave would result in disciplinary action ranging from a 10-day suspension to dismissal. She was further reminded in that written reprimand that she was required to request leave when she was going to take time off from work. On May 3, 1989, Petitioner advised her then supervisor Barbara Butler that she intended to take off some time to visit her sick mother, that she did not know exactly when she would be doing that, and that she did not know how long she would be gone. She told Butler she did not want to use any of her annual leave (vacation) time available to her; instead, she wished to take leave without pay so as to not use her annual leave time for that purpose. Her supervisor again advised her as to the proper procedures and further advised her that if she wished to take leave without pay such a request must be presented in writing in advance to Edward Dixon, the Food Service Director at Landmark. Petitioner understood the instructions given to her by Butler. She advised Butler that she would attempt to finish working the rest of that week but that if she found out that she needed to go even in the middle of the night, she would do so. Petitioner worked May 4 and May 5, 1989. During the time period of May 3 when Butler advised her to follow the proper procedures and informed her, once again, as to what the proper procedures were, through May 5, her last day of work, Petitioner submitted no request for leave to her supervisor and made no request of Dixon for authorized leave without pay. Petitioner was not scheduled to work on May 6 and 7, a Saturday and a Sunday. From Monday, May 8, 1989, through Thursday, May 11, 1989, Petitioner failed to report to work. Petitioner had not requested that she be permitted to take leave from her work assignment, and no authorization had been given to her by anyone to not report for work on those days. Butler advised Dixon that Petitioner had stated that she might be taking time off to visit her mother, and Dixon's subsequent attempt to contact Petitioner to ascertain why she had failed to report to work for four consecutive days was unsuccessful. By certified letter dated May 11, 1989, Dixon and Ulysses Davis, Superintendent at Landmark Learning Center, advised Petitioner that she had not called in or reported to work on May 8 through May 11 and, therefore, she had abandoned her position and was deemed to have resigned from the Career Service. They further advised Petitioner that her resignation would be effective on the date she received the letter or on the date that they received the undelivered letter directed to her. Petitioner received that letter on May 19, 1989. Between May 8, 1989, and May 19, 1989, Petitioner had made no contact with anyone at Landmark Learning Center. By May 19, 1989, Petitioner had been absent without leave for 10 consecutive workdays. On May 19, Petitioner appeared at Landmark Learning Center to pick up her pay check. Although she went to the food service area while she was at Landmark, she did not speak to Butler, Dixon, or anyone else regarding her lengthy unauthorized absence or her failure to request leave in advance of failing to appear for work. Similarly, she failed to speak to anyone in Landmark's personnel office regarding her failure to request leave time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner was absent without authorized leave for three consecutive workdays and is therefore deemed to have abandoned her position and to have resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of December, 1989. LINDA M. RIGOT 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 19th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3538 Petitioner's proposed findings of fact contained in her paragraphs numbered 1-3 have been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 1-4, and 7 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the evidence in this cause. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting recitation of the testimony. COPIES FURNISHED: Elizabeth Judd-Edwards Assistant Regional Director 2171 Northwest 22nd Court Miami, Florida 33142 Julie Waldman and Caridad Planas, Esquire 401 Northwest 2nd Avenue 5-424 Miami, Florida 33128 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Kennie W. McKay should be deemed to have abandoned his position and to have resigned from the Career Service on account of his absence from work on March 10, 13, 14, and 15, 1987?
Findings Of Fact Some 18 years ago, when petitioner Kennie W. McKay began working at the Dozier School in Marianna, he received a copy of the employee handbook the Department of Health and Rehabilitative Services (HRS) published at the time. A more recent edition, dated June 1, 1986, provides, in part: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness, injury, exposure to a contagious disease, or the illness or injury of a member of your immediate family. Your supervisor should also be given an estimate of the length of the absence. Medical certification may be requested. Respondent's Exhibit No. 3, p. 19. It was not clear from the evidence either that this language appeared in the edition Mr. McKay was furnished when he began work, or that he had ever seen the edition which came into evidence without objection. On June 1, 1983, the Dozier School adopted "POLICY AND PROCEDURE #:035" requiring advance approval of leave, except when "illness or a bona fide emergency" occasions the absence. In that event, the policy specifies that the employee must contact his/her supervisor as soon as possible. If he/she is unable to contact his/her immediate supervisor, the employee must contact the next higher level supervisor or someone in his/her normal chain of command. Leaving messages with the switchboard, coworkers, or other uninvolved staff will not be considered adequate notice. The employee is to notify his/her supervisor and only in situations where the employee is unable to contact the supervisor himself/herself will a call/contact from another person be acceptable. * * * (6) Employees displaying a pattern of unplanned absences may be suspected of abusing their leave privileges and may be subject to appropriate corrective action in accordance with HRSP 60-1 State Personnel Rules (Chapter 22A-8 and HRSR 60-51). Respondent's Exhibit No. 5, pp. 1 and 2. HRS has not promulgated this "policy and procedure" as an administrative rule. Direct evidence did not establish to what extent, if at all, petitioner McKay was aware of its existence or its provisions. But his efforts to reach the man he thought to be his immediate supervisor, James R. Kersey, suggest he believed he was required to try to do so. In his letter of February 23, 1987, the Dozier School's superintendent, Roy C. McKay, no relation to petitioner, advised petitioner McKay that Mr. Kersey would become his immediate supervisor upon petitioner's demotion from carpenter to house parent. In part, the letter stated: This is official notification that you are being demoted from Carpenter, position number 01082, to Houseparent, position number 01188. You are to report to Friendship House on the 10:00 p.m. to 6:00 a.m. shift, effective Friday, February 27, 1987, or the first day you return back to work. 1/ Your immediate supervisor will be Mr. James Kersey, Houseparent Supervisor I; and your days off will be Wednesday and Thursday. Respondent's Exhibit No. 1. Like Mr. Kersey, Mr. James Pyles and Mr. Jethro Pittman were house parent supervisors I assigned to Friendship House. Each supervised a different shift. Houseparent supervisors I reported to Norman Harris, who reported to assistant superintendent Pate, who reported to superintendent McKay. On every shift, an administrative duty officer has campus-wide responsibility. The administrative duty officer is also in the chain of command. Petitioner McKay did not learn until after he was told he no longer had a job that Mr. Harris was to be in the chain of command, because he did not see Mr. Harris' memorandum of March 10, 1987, until after March 16, 1987. In this memorandum, Mr. Harris advised: YOUR IMMEDIATE SUPERVISOR WILL BE JAMES PYLES, HOUSEPARENT SUPERVISOR I. YOUR NEXT HIGHER SUPERVISOR BILL BE ME, MR. NORMAN HARRIS. Respondent's Exhibit No. 8. Written communications addressed to petitioner McKay dated on and after March 10, 1987, were placed in "his box," but Superintendent McKay was aware that petitioner McKay did not see them on or before March 16, 1987. Before the superintendent's letter of February 23, 1987, gave "official notice" of the demotion, the two Messrs. McKay and others met in the Dozier School's conference room, on February 20, 1987. Petitioner McKay told those present that he had a doctor's appointment in Columbus, Georgia on March 10, 1987. As the superintendent understood it, the doctor had earlier warned against petitioner's overexerting himself, even against his walking too far. Everybody knew he was on leave on account of his medical condition at the time of the conference; he was, in fact, demoted because he was not physically able to discharge the duties of a carpenter. Evidently because he told the superintendent that he had a "sick slip through the ninth," the superintendent directed him to report on the tenth. Whoever drew the work schedule put him down as beginning his new assignment on March 9, 1987. As it happened, somebody in the doctor's office in Columbus called petitioner McKay's wife on March 9, 1987, and rescheduled the appointment for March 11, 1987. Deciding not to report for work before seeing the doctor, Kennie McKay telephoned the Dozier School on the tenth to let them know. Twice he reached Mr. Bridges, who was working the day shift as a house parent at Friendship House. He told Mr. Bridges he was not coming in to work that night. He asked each time to speak to Mr. Kersey. Each time Mr. Bridges told him Mr. Kersey was not there. Although Friendship House is the most secure cottage at the Dozier School and the locus of the school's "intensive supervision program," which is designed to calm boys down who are "in an uproar," the work on the night shift is not physically demanding. The boys are supposed to be asleep, and a house parent can call for reinforcements if problems arise. The houseparent can lock himself in a "crime cage" out of reach of the inmates, and could do his duty, which is mainly to observe, on crutches, if necessary. Nevertheless, when petitioner McKay visited the doctor in Columbus on March 11, 1987, he obtained a form from the doctor's office stating "out of work until next visit in 3 wks." Respondent's Exhibit No. 12. After he reached Marianna, he telephoned the Dozier School at 7:46 p.m. that evening. Charles Gardner, Jr., who was working as a house parent at Opportunity Cottage, took the telephone call. Mr. McKay told him he could not come to work that night, that he had been to see a doctor, that he had a doctor's excuse, and that he needed to talk to a night supervisor. While they were talking, Luther L. Spurlock, a house parent supervisor II in charge of a cluster that did not include Friendship House, entered the room, and took the phone from Mr. Gardner, who handed it to him. Petitioner McKay told Mr. Spurlock, "I'll be in tomorrow with a doctor's slip for Danny." After the phone call was over, Mr. Spurlock said to Mr. Gardner, "I'm not McKay's supervisor," or words to that effect. A form filled out toward the end of the shift stated: Kenny McKay called and said that he would be at the school tomorrow with a doctor slip to give Mr. Pate. Everything went well tonight no major problems. Respondent's Exhibit No. 10. Mr. Spurlock did not tell the petitioner that he ought to notify anybody else about his continuing absence. Kennie McKay had not been scheduled to work on March 11, 1987, in any event. His next scheduled work day was March 13, 1987. Respondent's Exhibit No. 7. On March 13, 1987, he telephoned the superintendent's office but, when told he was in a meeting, asked to speak to Bruce Gambill, Dozier School's business manager , instead. Mr. Gambill answers directly to the superintendent. He told Mr. Gambill "that he had been to the doctor and had a sick slip to be out of work." Respondent's Exhibit No. 11. Mr. Gambill asked him to bring a copy of the slip to the business office for Workers Compensation purposes ... [and] instructed Mr. McKay to contact his supervisor concerning the sick slip and being out of work. [Petitioner] said he had tried to call, but there was no answer. [Mr. Gambill] told him he needed to let his supervisor know about the sick slip. Respondent's Exhibit No. 11. Petitioner had telephoned that morning at 10:24 from Marianna, Petitioner's Exhibit No. 1, but he had not reached Mr. Pittman, the supervisor, who testified he might have been on an errand then. Whether Petitioner tried again to reach a supervisor after speaking to Mr. Gambill is not clear. James Pyles, the man who, although petitioner did not know it at the time, became the latter's supervisor on March 10, 1987, asked superintendent Roy McKay's permission to use a state car about three o'clock that afternoon to find out if Kennie McKay was going to come to work. Mr. Pyles drove to Dothan, Alabama, where he found petitioner walking around without crutches in an establishment known as Shag's. He did not tell petitioner that he had been made his supervisor or suggest that, since he did not seem to need crutches, petitioner come to work. The following night, as well, Mr. Pyles saw Mr. McKay getting around without crutches. On that occasion, too, Mr. Pyles refrained from any discussion relating to work at Dozier School. When Kennie W. McKay brought the doctor's slip, Respondent's Exhibit No. 11, to Dozier School on March 17, 1987, he was informed he no longer had a job.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration rule that Kennie W. McKay has not abandoned his position with the Department of Health and Rehabilitative Services, and has never lost his membership in the Career Service. DONE AND ENTERED this 28th day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1987.
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At all times material to the issue of abandonment in these proceedings, Petitioner Bynoe was a Career Service Employee, and was employed by the Department of Corrections at Hendry Correctional Institution in Immokalee, Florida, as a Correctional Officer I. In February 1989, the Petitioner submitted a written request for annual leave from June 9, 1989 to June 17, 1989. The leave was approved by the Petitioner's supervisor, Captain Jody Davis. June 6, 1989, Petitioner Bynoe was informed by Captain Davis that he did not have enough hours of annual leave accrued to cover the vacation period which was to begin on June 9, 1989. The prior written approval to the Petitioner for annual leave was revoked as the previously anticipated hours of accrued annual leave did not exist. The Petitioner had only eight hours of annual leave accrued at the time the approval of annual leave was revoked by Captain Davis. In an attempt to accommodate the Petitioner, who had already scheduled vacation plans, Captain Davis told him that the work schedule could be rearranged to allow Petitioner Bynoe to have five days off in a row from June 7, 1989 through June 11, 1989. This work schedule would give Petitioner Bynoe his regular days off of June 7th and 8th. His regularly scheduled days off of June 14th and 15th could be moved to June 9th and 10th, and the eight hours of annual leave available to Petitioner could be used on June 11th. Thus, Petitioner could have time off from work, and Captain Davis could act within his supervisory authority with regard to his approval of leave requests from the Petitioner, who was under his direct supervision. During the discussion between the Petitioner and Captain Davis, the Petitioner requested that he be allowed to take the full vacation period previously scheduled, and that the time from June 12, 1989 through June 17, 1989, be granted as leave without pay. Captain Davis informed Petitioner Bynoe that he did not have the authority to approve such a request, and that such an approval would have to come from someone higher in command. Although the two men ended their conversation with the clear intention to discuss the matter later during the work period on June 6, 1989, they were unable to discuss the matter again on that date. After the Petitioner completed work on June 6, 1989, he left for South Carolina as he had originally planned. On June 9, 1989, Petitioner telephoned Colonel Page at Hendry Correctional Institute. As Colonel Page was on leave, the call was transferred to the personnel manager, Mr. Dick Vollmer. During the conversation, the decision made by Captain Davis to revoke the Petitioner's leave from June 12, 1989 to June 17, 1989, was discussed. Captain Davis' decision was not modified by Mr. Vollmer or anyone else at the correctional institution. The Petitioner did not return to work on June 12, 1989. No additional contact with the institution was initiated by Petitioner until June 19, 1989, when he informed Captain Davis that he was to begin jury duty on that date. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989. Captain Davis expected the Petitioner back to work on June 12, 1989. Petitioner Bynoe was scheduled to work from June 12, 1989 to June 20, 1989. The Petitioner did not report to work nor did he contact anyone at the institution until June 19, 1989, when he began jury duty on that date. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989.
Recommendation Based upon the evidence, it is RECOMMENDED: That the Secretary of the Department of Administration issue a Final Order finding that Petitioner Bynoe abandoned his position and resigned from the Career Service System. DONE and ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1990. APPENDIX TO RECOMMENDED Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #2. Rejected. Contrary to fact. Accept that Captain Davis spoke with Petitioner. See HO #3 - HO #6. Reject the finding that Captain Davis had not informed the Petitioner that his previously approved leave request had been rescinded. Contrary to fact. See HO #3. Accepted. See HO #6. Accepted. See HO #7 and HO #8. Rejected. Contrary to fact. See HO #8. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. Rejected. This testimony not believed by the Hearing Officer. Accepted. Accepted. Rejected. Irrelevant. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. 19.-27. Rejected. Immaterial to these proceedings. Also, Daugherty's testimony was not believed by the Hearing Officer, and was rejected in full. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. Accepted. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #3. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #8. Rejected. Irrelevant. Accepted. Accepted. See HO #9. Accepted. See HO #9. Accepted. See preliminary statement. COPIES FURNISHED: Joan Stewart, Esquire Florida Police Benevolent Association, Inc. Post Office Box 11239 Tallahassee, Florida 32302 Perri M. King, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
Findings Of Fact The Petitioner, William Thomas, was employed at times pertinent hereto as a permanent employee at the Duval Regional Juvenile Detention Center (Detention Center) operated by the Department of Health and Rehabilitative Services. His title was Detention Case Worker I. During the two week period beginning June 13, 1988, the time period relevant to this proceeding, he was working a so called "asymmetric workweek." This is a modified work schedule such that the Petitioner was working two work days on the weekends consisting of two sixteen hour shifts, one for each day, for a total of thirty-two hours of work scheduled to be performed by the Petitioner on June 18 and 19, 1988. Prior to the problem which arose in this situation, the Petitioner was also scheduled to work on Tuesday, June 21, but not on Monday, June 20. The Petitioner's immediate work supervisor was Wilson Reynolds, Jr., who testified on Petitioner's behalf. In addition to the Petitioner, Mr. Reynolds supervised twelve other employees who were working the asymmetric work week. This work week had been approved by the Department of Administration approximately two years previously, in 1986, at least as to this juvenile detention center. Pursuant to HRS rules, Mr. Wilson had authority to grant emergency leave when employees requested as, for instance, when an employee phoned in such a request when he was unable to come to work due to some emergency having arisen. Mr. Wilson also had authority to schedule employees to work shifts outside of their routine work schedule if the need arose. Mr. Wilson's employees, for instance, had been scheduled to work some extra duty in order to perform the duties of other employees who had to be absent from their normal work stations to attend training sessions. According to agency policy, in Mr. Reynolds' absence, the supervisor immediately on duty could grant tentative approval of emergency leave requests. In the event the supervisor on duty was unable to approve or deny the leave request, Mr. Reynolds had authority to approve leave requests "after the fact." It developed that some time during the week of June 13, the Petitioner became incarcerated. The Petitioner was unable to obtain access to a telephone for several days, and so, at his behest, his wife called the "Master Control" office at the detention center on June 16, 1988, to advise the Petitioner's employer that he would not be able to report to work, as scheduled, due to emergency reasons. On June 18, 1988, she again called that same "Master Control" office to advise that the Petitioner would be away from work until June 30, 1988, due to an emergency beyond his control. The Petitioner, after his last duty shift which he had performed, was not scheduled to work until June 18, 1988. He was then scheduled to work two eight hour shifts on June 18 and two eight hour shifts on June 19, which was a Sunday. On Monday, he was not scheduled to work. Then on June 21, Tuesday, he was scheduled to work an eight hour shift. Mrs. Thomas' reason for calling the employer's office was to put the employer on notice of his unavoidable absence from work. She was not aware of the rule requiring her to speak with the immediate supervisor. The immediate supervisor was not on duty on the day that she called in any event. She did speak with a staff member, a Mrs. Wavel Johnson, with whom she was acquainted, who advised her to have the Petitioner himself call in and request approval for the absences. Mrs. Thomas then revealed that her husband was incarcerated and would be incarcerated until June 30, 1988, which was why he was unable to call. This information was then conveyed to Mr. Reynolds, the Petitioner's immediate supervisor on June 19, 1988 at the beginning of the shift. On that day, during the morning, the Petitioner called and spoke with Mr. Reynolds, his supervisor. The Petitioner advised him of his incarceration and his anticipated release date of June 30, 1988, requesting that he use his accrued annual leave to cover this absence. Mr. Reynolds orally agreed to the request and approved it, pending the Petitioner's return to work and submittal of proof of the reason for the stated emergency basis for absence. Mr. Reynolds considered Mr. Thomas' incarceration as a sufficient justification for granting emergency leave. In the log book, Mr. Reynolds had a staff member, Mrs. Johnson, make a note that Mr. Thomas had called in requesting leave and that he "had no problem" granting emergency leave. He testified that he intended that notation to mean that he had approved the leave request. During Mr. Reynold's conversation with the Petitioner, he advised Petitioner that he would schedule him off duty for Tuesday, June 21, 1988, because he already had sufficient staff who would be present for duty to cover his assignment and would not need the Petitioner. Thus, for the eight hour shift he was originally scheduled to work on June 21, 1988, the Petitioner was not absent without approval either. The roster was changed so that he was not even scheduled to work that day. Andrea Cash is the superintendent of the Duval Regional Detention Center. On or about June 20, 1988, she read Mrs. Johnson's entry in the log book and concluded that Mr. Reynolds had not granted the necessary leave approval to cover the Petitioner's absence. Ms. Cash interpreted that entry to be that the leave approval was merely pending and that Mr. Reynolds had "no problem" with granting it. Ms. Cash, however, did not confer with Mr. Reynolds or Mrs. Johnson about what the entry meant nor seek any clarification as to the meaning of the entry or Mr. Reynolds' intentions with regard to the leave approval. Ms. Cash concluded that the leave had neither been approved nor denied, but did not communicate that position to the Petitioner. Instead, on June 23, 1988, she wrote the Petitioner advising him of his alleged job abandonment due to his absences of June 18th and 19th. She never discussed her plans to terminate the Petitioner, for alleged abandonment, with Mr. Reynolds. The approval granted during June or July 1986 to the Detention Center to implement an asymmetric work week was in accordance with Rule 22A-8.003(1), Florida Administrative Code. That rule provides that eight hours of work shall constitute a work day for all full-time employees, unless a different work day is specifically approved by the Secretary of Administration. The asymmetric work day had been so approved and implemented at times pertinent hereto. The Petitioner normally worked two 16 hour work days from 7 a.m. to 11 p.m. on Saturday and on Sunday plus one other eight hour work day. Thus, three calendar work days constituted Petitioner's normal work week of 40 hours. The Detention Center has a "Facility Operating Procedure on Leave and Attendance" which provides that an employee must contact the supervisor on duty in advance of the beginning of his shift and advise that supervisor of the nature of any emergency concerning which he asks for leave. The duty supervisor then has authority to tentatively approve or deny the request. The employee must personally speak with the supervisor who is on duty. Thereafter, on the first day the employee reports back to work an "HRS Form 84" must be completed and the immediate supervisor must provide final approval if the annual leave is to be approved due to the stated emergency. The procedure does not provide that the employee's supervisor is to discuss the request with higher levels of supervision prior to granting approval for use of annual leave to cover such an absence. This procedure and policy does not require that higher level supervisors review the request and give final approval or denial. In other words, the employee in this situation is using his own annual leave to make up for his absence for emergency reasons and the facility's policy gives the immediate supervisor himself or herself the authority to approve it or deny it without recourse to higher supervisory authority. The Petitioner's wife contacted the person or office she believed was appropriate to report the Petitioner's impending absence and to explain that it was for emergency reasons, not knowing that she should speak to his immediate supervisor. In any event, before the Petitioner had missed three consecutive days of work he himself contacted his immediate supervisor, Mr. Reynolds, during the morning of June 19, 1988, and obtained Mr. Reynolds' verbal approval for absence due to emergency reasons, to be "covered" by Petitioner's annual leave. Mr. Reynolds did not tell the Petitioner that his request did not comply with the Facility Operating Procedure on Leave and Attendance. Mr. Reynolds, rather, accepted the Petitioner's justification for the emergency leave and approved it.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED that a Final Order be entered determining that the circumstances presented in this case, found and discussed above, did not constitute abandonment of position, as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code, and directing that the Petitioner be reinstated to his former position with backpay and reimbursement of related benefits. DONE and ORDERED this 20th day of March, 1989, in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of March, 1989. APPENDIX Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Respondent's Proposed Findings of Fact Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent immaterial. Accepted, but not in itself dispositive of material issues presented. Accepted, but not in itself dispositive of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as contrary to the preponderant weight of the evidence. COPIES FURNISHED: Linoria Anthony, Esquire 345 South Magnolia Drive & Suite F - 21 Tallahassee, FL 32301 Scott D. Leemis, Esquire P. O. Box 2417 Jacksonville, FL 32231-0083 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Louis C. Germain, has been employed with the Department of Health and Rehabilitative Services, Foster Care Unit-452 since late 1984 or early 1985. On the morning of February 3, 1986, the Petitioner was involved in an automobile accident during the course of his employment while enroute to pick up a client who had a court appointment. As a result of the accident the Petitioner sustained several injuries, including a nose injury, back pains, headaches and blurred vision. The Petitioner was taken to his physician's office. At approximately 4:30 p.m. on February 3, 1986, the Petitioner called his immediate supervisor, Ms. Shelia Weiner, and advised her of the accident and of his injuries. On Friday, February 7, 1986, the Petitioner went to his office to pick up his pay check. The Petitioner spoke with Ms. Weiner and informed her that he did not know when his physician would allow him to return to work. On Monday, February 17, 1986, the Petitioner returned to the office once more to pick up a pay check. Ms. Weiner told the Petitioner that he had to report to work on Thursday, February 20, 1986. The Petitioner told Ms. Weiner that he was still suffering from injuries sustained in the February 3, 1986 accident and that he did not know when he would be able to return to work. On February 20, 1986, Ms. Weiner wrote the Petitioner a letter stating that his absence from work since February 17, 1986 had not been authorized. The letter stated in part that: "You are directed to report to work immediately and provide an explanation for your absences." The Petitioner received Ms. Weiner's letter on Saturday, February 22, 1986. On Tuesday, February 25, 1986, the Petitioner had an appointment with his physician and obtained a medical statement from her. The Petitioner's physician indicated in the medical statement that Petitioner had been under her care since the automobile accident of February 3, 1986, that Petitioner sustained multiple injuries in the accident and that Petitioner was now able to return to work. The Petitioner returned to work on February 25, 1986 and was advised that he needed to speak with Mr. Carlos Baptiste, supervisor of the personnel department. The Petitioner presented the letter from his doctor to Mr. Baptiste, but Baptiste was not satisfied with the doctor's statement and felt that it was "insufficient." Baptiste asked the Petitioner if he had a towing receipt or an accident report to confirm the accident of February 3, 1986. The Petitioner replied that he did not. The Petitioner was not allowed to return to work. At the final hearing, Mr. Baptiste stated that: "If Mr. Germain had produced an accident report, he would still be working with HRS." The Petitioner's leave and attendance record maintained by DHRS reflected that the Petitioner was given sick leave from February 3 to February 6, 1986. From February 7 to February 20, 1986 the Petitioner was placed on leave without pay. On March 3, 1986, Ms. Sylvia Williams notified the Petitioner by certified mail that due to his absence from work since "February 17, 1986", he was deemed to have abandoned his position and to have resigned from the Career Service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Administration enter a final order reinstating Petitioner to his position with the Department of Health and Rehabilitative Services, Foster Care Unit-452 in Miami, Florida. DONE and ORDERED this 4th day of February, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3319 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 11. Matters not contained therein rejected as argument. Addressed in Conclusions of Law section. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as argument. Rejected as argument. Rejected as argument. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a recitation of testimony and/or argument. Adopted in substance in Finding of Fact 6. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as mis- leading. Rejected as subordinate. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: Louis C. Germain 308 Northeast 117 Street Miami, Florida 33161 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue - Suite 790 Miami, Florida 33128 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue Whether the Respondent discriminated against the Petitioner on the basis of disability, in violation of the Florida Civil Rights Act of 1992, Section 760.10 et seq., Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rivero was first employed by Miami-Dade County in November 1984, apparently as a security guard with the Metropolitan Dade County Park and Recreation Department. He took a physical examination and informed the doctor conducting the examination that he suffered from cluster migraine headaches and that they occurred about six to eight times each month. Mr. Rivero subsequently left his employment with Miami-Dade County, but was re-hired in September 1986. At the time he was re-hired, he advised the recruiting officer that he suffered from migraine headaches. Mr. Rivero was employed by the Metropolitan Dade County Park and Recreation Department from September 1986 until August 10, 1999. From January 1996 through May 1999, Mr. Rivero was employed as a park ranger by the Metropolitan Dade County Park and Recreation Department, and he worked at the Metrozoo. His job responsibilities included patrolling areas of the zoo, assisting in emergencies, providing information to patrons, and providing for the safety of patrons and security for Miami-Dade County property. Because of his migraine headaches, Mr. Rivero often was absent from work, and he was advised several times by his supervisors, in documents entitled Record of Counseling, that the frequency of his absences was unacceptable. The most recent Record of Counseling submitted at the hearing by Mr. Rivero was dated November 24, 1997. On January 10, 1995, Mr. Rivero consulted with Ray Lopez, M.D., a neurologist, about his recurring migraine headaches, which had become more intense and frequent after Mr. Rivero was involved in an automobile accident in November 1994. Dr. Lopez diagnosed Mr. Rivero with migraine headaches, with post-traumatic, likely cervicogenic, intensification. Dr. Lopez treated Mr. Rivero for his headaches from January 1995 until at least December 1999. During this time, Mr. Rivero was seen by Dr. Lopez approximately twice a month. Between 1995 and 1999, Mr. Rivero's migraine headaches continued to intensify in severity and frequency. By January 1999, Mr. Rivero found it increasingly more difficult to carry out his duties as a park ranger at Miami-Dade County's Metrozoo when he had a headache, and his headaches were occurring almost daily. Between January 1999 and March 1, 1999, Dr. Lopez wrote several notes documenting Mr. Rivero's inability to work on specified days because of the headaches. Effective March 29, 1999, Mr. Rivero's work schedule was cut from 39 hours per week to 16 hours per week. Mr. Rivero had previously worked Saturdays through Wednesdays, with Thursdays and Fridays off. As a result of the change, Mr. Rivero was assigned to work on Saturdays and Sundays from 10:00 a.m. to 6:30 p.m. Mr. Rivero last reported for work at the Metrozoo on or about May 22, 1999. Mr. Rivero was unable to continue working because of the frequency and severity of his headaches. Nonetheless, Mr. Rivero called the Metrozoo office regularly between May 22, 1999, and July 18, 1999, to report that he was absent because of illness. He did not, however, have any intention of returning to work after May 1999 because he believed he could no longer perform the duties required of a park ranger.3 In July 1999, Diane Condon, the personnel manager for Metropolitan Dade County Park and Recreation Department, was told by Mr. Rivero's supervisor at the Metrozoo that Mr. Rivero had been absent for quite some time, that he had exhausted his paid leave time, and that the reason for his absences was medical. It was suggested to Ms. Congdon that Mr. Rivero be offered leave under the Family Medical Leave Act of 1993. In a letter dated July 12, 1999, from John Aligood, Chief of the Human Resources Division of the Metropolitan Dade County Park and Recreation Department, Mr. Rivero was notified that he had been preliminarily granted family/medical leave but that he would have to present a certification from his doctor within 15 days of the date he received the letter in order for his eligibility for such leave to be finally determined. Mr. Rivero was advised in the July 12, 1999, letter that continuation of the leave was contingent on receipt of medical certification from his doctor; that he must furnish the certification within 15 days after he received the letter; and that "[f]ailure to do so will result in relinquishing FMLA leave; you will then be required to return to the full duties of your job or resign, or you will be terminated for abandonment of position." The July 12, 1999, letter was sent to Mr. Rivero via certified mail, and he picked it up on July 22, 1999. Mr. Rivero contacted Ms. Congdon on July 22, 1999, and told her that Dr. Lopez was unavailable at that time to complete the medical certification. Ms. Congdon advised him that the medical certification was required for the family/medical leave to continue.4 In a letter dated August 10, 1999, which was prepared by Ms. Congdon, Mr. Rivero was advised that his employment had been terminated for abandonment of position because he had failed to provide the medical certification required for continuation of family/medical leave by July 26, 1999, which was 15 days after July 12, 1999.5 Summary The evidence presented by Mr. Rivero is insufficient to establish with the requisite degree of certainty that his employment as a park ranger with the Metropolitan Dade County Park and Recreation Department was terminated because of his medical condition. Mr. Rivero himself testified that he believed he was unable to perform the duties required by his job as of May 1999 because of his migraine headaches and that he had no intention of returning to work subsequent to May 1999. The evidence presented by Mr. Rivero is sufficient to support the inference that, prior to July 12, 1999, Mr. Rivero did not advise his supervisor at the Metrozoo or anyone else in the Metropolitan Dade County Park and Recreation Department that he did not intend to return to work after the end of May 1999. His being placed preliminarily on family/medical leave as of July 12, 1999, did not harm Mr. Rivero but, rather, resulted in his health benefits being continued until his termination on August 10, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Ruben Rivero. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2002.
The Issue Whether Respondent was overpaid for 27.5 hours in the amount of $271.70, originally credited as administrative leave?
Findings Of Fact The DJJ is an agency with a centralized personnel office in Tallahassee, Florida. All the records of its personnel are kept and maintained in Tallahassee, Florida. Petitioner, Jennifer Carter Nicholson, was employed in the category of an Other Personnel Services (OPS) employee by DJJ from May 8, 2002 until September 12, 2002, at the Marion Juvenile Detention Center as a Juvenile Detention Officer. As an OPS employee, Petitioner did not earn sick or annual leave credit. Petitioner was employed by DJJ as a Career Service employee from September 13, 2002 until October 6, 2002, at the Alachua Juvenile Detention Center. As a Career Service employee, Petitioner earned three hours' credit of annual leave and three hours' credit of sick leave during her employment from September 13, 2002 until October 6, 2002. Petitioner did not work from September 23, 2002 until the effective date of her resignation on October 6, 2002, because of complications from asthma, which was why she tendered her resignation. During the last week of her last pay period, Petitioner worked 12.5 hours. A time sheet appears to have been submitted in her behalf by a person or persons unknown claiming 27.5 hours of sick leave. The payroll clerk apparently determined that Petitioner was not entitled to 27.5 hours of sick leave, and erroneously credited Petitioner with 27.5 hours of administrative leave. Upon that basis, Petitioner was paid for a full week's work. This amounted to $855.87, or 80 hours at a rate of $10.70 per hour. However, the records indicate, and Petitioner does not deny, that she did not work 27.5 hours during the second week of the period. Thereafter, an audit of her account revealed that Petitioner was not entitled to administrative leave, and this action was initiated within the statute of limitations to seek re-payment of $271.70. During the period in question, Petitioner's attendance and leave record reflects that Petitioner earned three hours of annual leave and three hours of sick leave. See Respondent's Exhibit 6.1/ This leave was not credited against the 27.5 hours. Therefore, crediting Petitioner with the six hours of leave she had earned, the time actually taken in the status of leave without pay should have been 21.5 hours. At Petitioner's rate of pay, this would have been an over-payment of $230.05, minus the $22.51 originally deducted for miscellaneous deductions, or $217.44.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Juvenile Justice enter a final order directing the repayment of $217.44 from Petitioner. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 6th day of November, 2003.
Findings Of Fact On April 18, 1988, Respondent, Jack Schenkel, was employed as one of fifteen fire fighter/emergency medical technicians, (EMT), with the Tarpon Springs Fire Department. He was scheduled to work on C shift which was to start at 7 am and extend for 24 hours until 7 am, April 19, 1988. In accordance with normal procedure, he then would have been off for 48 hours before his next shift. At approximately 1:30 am on April 18, Lt. Dennis L. Jennings, B shift supervisor, was on duty at the main fire station, when he received a phone call from the Respondent who indicated he had had a serious quarrel with his girl friend. Respondent indicated she was drunk and had "trashed" his house and he needed to stay at home to insure his possessions were not ruined. Respondent's actual request was for a personal day off, and when Mr. Jennings indicated there was no such thing for City employees, Respondent asked for a vacation day. It is and has been, for as long as Respondent has worked with TSFD, Department policy that vacation pay can only be authorized by personnel above the grade of Lieutenant, and while the actual paper request may, at times, be signed after the fact, the authorization must be received prior to departure so that the Department has time to rearrange schedules to accommodate the absence. When Mr. Jennings advised Respondent of this, though evidence indicates he was aware of it, Respondent indicated he had had no sleep and as a result, Mr. Jennings suggested that Respondent take a day of sick leave. However, Mr. Jennings also reminded Respondent that in accordance with an order issued in writing by the Fire Chief in 1979 to the effect that requests for sick leave must be called in between 6 and 6:30 am of the day in question, prior to the start of the duty day, he would have to call in during the prescribed time to arrange for his sick leave. Though a Lieutenant can take the information, he does not have the authority to approve the leave. As a matter of fact, however, bona fide sick leave, called in in conjunction with the Chief's order, at an appropriate time, is never disapproved. Respondent did not call in between 6 and 6:30 am on April 18 to request sick leave as he had been instructed to do by Lt. Jennings. Mr. Lopes, also a fire fighter, who was scheduled to work on the same shift, arrived at approximately 6:50 that morning. When he spoke to Lt. Jennings to ask where he would be assigned, Jennings advised him that Respondent had not come in and Lopes would fill his slot. Jennings told Lopes what Respondent had told him concerning the house and like matters. At that point, Lopes advised Mr. Jennings that Respondent did not own the house where he was living nor was he the prime tenant. To verify this, Jennings telephoned Respondent at home at approximately 7:05 am. When Respondent answered the phone and Jennings asked why he had not reported for duty, Respondent indicated that he intended to take a sick day. Jennings reminded him that he had not called in properly and told him that if he took the time off, there would be repercussions. According to Jennings, Respondent did not seem concerned about that possibility, replying something like, "Oh well, whatever." Lt. Jennings logged this call in and reported the situation to his relief, Lt. Parker, the incoming shift lieutenant. He also discussed the matter the following morning with Assistant Chief Carr and at Carr's request, submitted a written statement of what had happened. According to the City regulations, sick leave, such as was requested by Respondent here, can be used for situations where the employee himself is sick or disabled; where the employee has an appointment with a physician or dentist; where the employee in under medical quarantine; and as a result of a death in the immediate family of the employee, in which case, only four days leave are authorized. Girl friends are not included within the definition of "immediate family." In the opinion of Mr. Carr, sick leave is not authorized for circumstances such as were described by Respondent in his reasons for not coming in. Under the terms of the City regulation, taking a sick day for a reason not within the above-described categories, constitutes grounds for discipline. When Respondent came to work on April 21, 1988, Chief Carr called him in and asked for an explanation of why Respondent had failed to report for duty on April 18. In response, Respondent told him the same story he had related to Lt. Jennings. In the course of their conversation, Carr advised Respondent that he, Respondent, knew from prior incidents that sick leave was not appropriate under these circumstances. Respondent replied that his girl friend was sick and he was concerned about her safety, and showed Carr a copy of the police report regarding the incident on April 18 which reflected that she was highly intoxicated. Carr advised Respondent that the circumstances did not justify or authorize sick leave, and that action would be taken to terminate him from employment. With that, Respondent left. After Respondent departed, Chief Carr reviewed his personnel records in detail and saw the number of sick days Respondent had taken since he began work with the Department, as well as his prior disciplinary record. Respondent's personnel record shows that in the years he has been an employee of the City, he has taken 44 sick days accounting for 1,056 hours of sick leave. He then prepared a memorandum outlining it which he forwarded to the City personnel director who concluded that termination was appropriate. Respondent's personnel records reflect the following actions: Memorandum 7/82 from Respondent's shift leader indicating he arrived 2 hours 9 minutes late for work. When questioned, he related his alarm did not go off due to a possible power failure. Memorandum 8/19/82 from Respondent's supervisor reflecting he was again late for work by 1 hour 45 minutes. On 2/7/83, Respondent called in for sick leave at 6:40 am, 10 minutes after the close of the call-in window. Respondent was given a written reprimand. On 3/23/83 Respondent reported for work at 7:11 am without calling in. He indicated he had a flat tire. He was ordered to take a one day suspension without pay. On 5/2/83 Respondent was found asleep on duty with earphones on his head, a violation of rule 5, Section 4, Civil Service Rules and Regulations of the City of Tarpon Springs. For this offense, Respondent was given a warning. On October 27, 1983, Respondent was warned and counseled regarding the prior discrepancies in his job performance including the incident involving his sleeping on duty and his 17 incidents of sick leave within a relatively short period. On October 7, 1985, Respondent was again counseled on his excessive use of sick days which then amounted to 26 despite a counseling on the matter in December, 1984 and in October, 1983. On February 7, 1986, Respondent was disciplined for calling in at 6:48 am, on February 4, 1986, outside the window for sick leave call in. He was given a written warning and a one day suspension without pay. On August 7, 1987, Respondent called in sick at 6:17 am which was within the parameters of the Chief's order. As is the Department's policy, however, the Lieutenant on duty called back several minutes later to check on the employee, and found that Respondent was not sick. In fact, he had left to go to the store to pick up a part for the truck on which he was working. Since this constituted an abuse of sick leave, he was given a three shift suspension without pay. On January 28, 1988, Respondent was counseled for poor report writing and advised to take greater care in doing so. Even after two warnings to this effect, his reports were still incorrect and incomplete and he was given a written warning. Chief Carr is of the opinion that Respondent's improperly using sick days, and his failure to call in to request sick leave on time, demonstrates a disregard for the City's leave program and regulations. After the incident on April 18, Chief Carr had a report prepared analyzing Respondent's sick leave from the beginning of his employment with the Department in 1982. This report showed a pattern wherein Respondent would work one shift, do overtime and exchange days with other fire fighters so he could work two days in a row, and thereafter take several sick days in a row. It was apparent from this analysis that Respondent was manipulating the sick leave process for his own benefit and the testimony of Ms. Evans that he was moonlighting with Medic-One, an ambulance company in Pinellas County, on some of the days he had called in sick, tends to support this conclusion. Under the terms of the Personnel Rules of the City of Tarpon Springs, a fire fighter earns 15 days sick leave per year, which, if not used, can be carried over to succeeding years. Chief Carr has not had a sick leave analysis prepared on any other employee within the Department even though, to his understanding, there are others who have taken off an equivalent number of sick leave days. To the best of his understanding, however, the other employees utilized their sick leave in an appropriate manner. Respondent has been employed by the Department since May, 1982 as a paramedic. He admits the incident on April 18. He went to bed at approximately 10 pm on the evening of April 17, 1988 because he had to go to work the next morning. He was awakened around midnight by his girl friend who was hitting him, throwing things around, and screaming. She was very intoxicated. Respondent tried to avoid her and called the police who tried to quiet them both down. After the police left at about 12:30 am, Respondent went to sleep on the couch. At approximately 1:30 am she started fighting with him again and to avoid any further dispute, he took some of his things, left the apartment and made the first call to Lt. Jennings. In that conversation, according to Respondent, he advised Jennings he was tired and upset and needed the day off but to his recollection, did not request any specific type of time off. At the time in issue, Respondent admits to having both sick leave and vacation time adequate for the following day accrued. According to Respondent, Jennings did not say Respondent could not have the time off nor did he say how it would be recorded. He also did not tell him to call back or to do anything else in order to secure approval for his time off. However, in light of the fact that Respondent had obviously been aware of the requirement to call in for sick leave within a certain time window, and in light of the uncontroverted evidence that he failed to do so, whether Jennings advised him to call in or not is irrelevant. After talking to Lt. Jennings, Respondent intended to spend the night on his boat. However, he was too upset and was unable to sleep and he merely sat on the boat until just before dawn when he went back to his apartment. He did not sleep at all that night. Jennings called at about 6:30 am. During the conversation, Jennings talked to him about whose apartment it was and Respondent, tired and upset, told Jennings that since he'd already given him the time off, he could categorize it any way he wanted. Respondent had to find a place to stay and put his things in storage and he was quite tired. He did not feel he could go to work, and since Jennings did not direct him to come to work, he did not do so that day. Respondent reported to work the next shift he was scheduled for and was called in for an interview during which he was advised he was being terminated for abuse of sick leave. He attempted to tell the Chief he had not requested sick leave and explain what had happened, but Carr advised him he was nonetheless going to recommend Respondent be fired. Respondent does not dispute his prior disciplinary record but denies ever having called in on sick leave when he was not really sick in order to work someplace else. The testimony of Ms. Evans outlining several days on which Respondent worked for Medic-One when he appears to have called in on sick leave shows otherwise. Respondent would not object to a use of vacation time for the absence on April 18, 1988. It appears from the evidence that had Respondent not had so extensive a history of prior disciplinary actions, his absence here may well have been charged to vacation leave to protect him. Vacation time, when properly authorized, can be used for any purpose whatever. However, it must be properly approved in advance by someone higher than a Lieutenant. Chief Carr admits that had Respondent called and spoken to him that night, he might have been given vacation leave. However, in this case, no consideration was given to allowing Respondent to take vacation time for this absence because of his prior record. In making his decision to terminate the Respondent, Chief Carr considered not only the Respondent's disciplinary record, but also his commendations. Nonetheless, the good in Respondent's file did not justify overlooking the bad and his judgement in this case is not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Jack Schenkel, be discharged from employment with the Fire Department of the City of Tarpon Springs. RECOMMENDED this 10th day of October, 3988, 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 10th day of October, 1988. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 5. Accepted and incorporated herein. 6. Accepted and incorporated herein. 7. Accepted. 8. Accepted and incorporated herein. 9 - 10. Accepted and incorporated herein. 11. Accepted and incorporated herein. 12. Accepted. 13. Accepted and incorporated herein. Irrelevant. Accepted. 16 - 19. Accepted and incorporated herein. 20 - 21. Accepted and incorporated herein. 22. Accepted. 23 - 36. Accepted and incorporated herein in substance but not in detail. 37. Accepted. 38 - 39. Accepted and incorporated herein in substance. 40 - 42. Accepted and incorporated herein. For the Respondent: 1 - 2. Accepted and incorporated herein. 3 - 5. Accepted and incorporated herein. 6 - 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: NICHOLAS J. SARGENT, ESQUIRE SARGENT, REPKA, AND COVERT, P.A. 2963 GULF-TO-BAY BLVD., SUITE 320 CLEARWATER, FLORIDA 34619 ROBERT F. MCKEE, ESQUIRE 1724 EAST 7TH AVENUE TAMPA, FLORIDA 33605
