The Issue Whether or not Respondent, Seminole County Public Schools, discriminated against Petitioner, Juanita O. Jones, in employment by reason of race, in violation of Subsection 760.10(1), Florida Statutes.
Findings Of Fact Based on the testimony and demeanor of the witnesses, and documentary evidence, the following findings of fact are made: Petitioner is a black female, who has been employed by Respondent since 1991. She has served Respondent as an Executive Secretary, Elementary Education; Executive Secretary to the Administrative Assistant to the Superintendent; and a Technical Assistant, Media Center, Sanford Middle School. Prior to her employment by Respondent, Petitioner was employed as a word processing systems operator by the Florida Department of Corrections. In late 1999 or early 2000, Petitioner applied for the advertised position of Specialist, Applications Software. Respondent had advertised three separate Specialist, Applications Software, position vacancies during a two-month period. Although interviewed for the vacancies for the first two positions, Petitioner was not selected for the first two advertised vacancies. Petitioner does not contend that her non- selection for the first two positions was a result of unlawful discrimination. Applicants for the three Specialist, Applications Software, positions were interviewed by a two-person panel: Regina Klaers and John Davis. Ms. Klaers is Supervisor, Student Support; Mr. Davis is Manager, Student Support and Information Services. These individuals supervised the Specialist, Applications Software, position and were intimately familiar with the job requirements. Thirteen individuals applied for the third Specialist, Applications Software, position. Of the thirteen, ten met the minimum qualifications. Three applicants were interviewed. Applicants who had been previously interviewed, Petitioner among them, were not interviewed an additional time as the interviewers felt they had sufficient knowledge from the previous interviews. Petitioner had been interviewed twice previously. The interviews focused on three areas: (1) school- based experience with student data; (2) customer service experience; and (3) "people skills." These were critical areas for the position. The interviews were particularly important in assessing an applicant's "people skills." It was the opinion of the interviewers that one applicant's qualifications in these critical areas exceeded the other applicants', including Petitioner's. Based on the interviews, Elizabeth Jean Smith, a white female, was selected for the position. Ms. Smith had significantly greater school-based "data-entry" experience with the student data systems, WANG and SASI, than did Petitioner. Immediately prior to being selected for the position in question, Ms. Smith's position was Clerk/Receptionist-Customer Service. Both interviewers agreed that Ms. Smith demonstrated better "people skills." Credible evidence supported the selection of Ms. Smith based on her extensive school-based experience with student data systems and her customer service experience. While "people skills" are less empirically quantifiable than the other critical areas of the interviewers' focus, nothing revealed during the final hearing led the undersigned to believe that Petitioner had better "people skills" than did the individual selected for the position. Respondent selected Elizabeth Jean Smith for the Specialist, Applications Software, position because she was more qualified for the position than other applicants, including Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 30th day of September, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 30th day of September, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Alberto E. Lugo-Janer, Esquire 3501 West Vine Street, Suite 281 Kissimmee, Florida 34741-4673 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On July 8, 1986, Respondent, Department of Health and Rehabilitative Services, sent Petitioner, Shirley Johnson, a letter to confirm her separation from employment as a Human Services Worker II in Pierce Cottage, Unit II, Facility IV, at the Gulf Coast Center in Ft. Myers. At the time, Johnson was a permanent employee of HRS. Her job at Pierce Cottage was to help care for 29 severely profoundly mentally retarded persons. On or about May 6, 1986, HRS' Gulf Coast Center instituted new policies for applying for authorization for leave from work. /1 No longer would Petitioner and fellow employees be required to notify their immediate supervisor, Twila Bevins, of their absence or tardiness. Instead, the employees are responsible only to notify the group shift supervisor on duty at Pierce Cottage. The employee only advises the group shift supervisor of the employee's intent to apply for authorization for leave and the amount and time the leave would be taken. The group shift supervisor does not approve leave. Authorization for leave must be obtained directly from the immediate supervisor, Twila Bevins, by explaining the reasons for the leave request which would entitle the employee to authorization for leave. Application for authorization for leave can be made either before or after the group shift supervisor is notified. However, no leave can be authorized for an employee who did not personally give notification of anticipated absence unless the employee is incapacitated. Petitioner is a mother of six. She also cares for her father, who has heart disease, and for her mother, who is overweight and has limited mobility. After a separation she has been reconciled with her husband, who, after being out of work, is now employed and contributes to the support of the family. On July 2, 1986, Petitioner and her immediate supervisor agreed that Petitioner would have July 3 and 4 off, but would work from 6:30 A.M. to 2:30 P.M. on July 5. Petitioner also was scheduled to work on July 6, 7 and 8, 1986. During the early morning hours of Saturday, July 5, between approximately 1:00 A.M. and 4:30 A.M., Petitioner's father had a heart attack and Petitioner and her husband went with him to the hospital and stayed there while he was being cared for. When they returned home at approximately 4:30 A.M., they were told by Petitioner's mother that Petitioner's brother was in jail in Ocala and that she was very concerned about her son. At her mother's request, Petitioner and her husband agreed to drive to Ocala to bail her brother out of jail. When they arrived in Ocala, Petitioner's husband, who was driving when they arrived in Ocala, was arrested for driving with a license under suspension and was himself put in jail. Petitioner herself then had to drive back to Ft. Myers to get money to bail her husband out of jail, drive back to Ocala to bail him out, and drive her husband back to Ft. Myers, a drive of a total of approximately 600 miles. Petitioner did not work and did not call in to work on Saturday, July 5. She was absent without authorized leave. On Sunday, July 6, 1986, Petitioner called into work at 6:30 A.M. to explain to the shift supervisor why she had been absent the previous day, and to notify him that she would not be in until approximately 10:00 A.M. However, tired from her ordeal the previous day and developing a severe headache, Petitioner did not work on Sunday, July 6. She called in later in the morning and spoke to one of the women working in Pierce Cottage but did not speak to the group shift supervisor. She was again absent without authorized leave. On the following morning, Monday, July 7, 1986, Petitioner called in at 6:25 A.M. to tell the group shift supervisor she would be late getting in to work. However, her headache got worse, and the pain traveled down to her neck and down one side of her body. The pain was so severe that she was crying uncontrollably. Although she still told her husband that she wanted to go to work to avoid any disciplinary problems, he talked her into letting him telephone Pierce Cottage to say that she would not be able to work on July 7. At approximately 6:45 A.M., her husband telephoned the group shift supervisor and told him that Petitioner would not be at work at all that day because of her physical condition. On Tuesday, July 8, 1986, Petitioner still was in approximately the same physical condition. At approximately 7:00 A.M., her husband telephoned the group shift supervisor at Pierce Cottage, reported her physical condition, and reported that Petitioner would not be in to work on July 8. Petitioner's husband also reported that Petitioner would probably have to see a doctor that day. Petitioner did indeed go to the Lee County Health Department on July 8, 1986, to be seen for her physical condition. Petitioner went to the Lee County Health Department because she and her husband could not afford to pay a private doctor. When Petitioner arrived at the Health Department at approximately 2:00 P.M., there was no doctor available to see her. She left at approximately 3:00 P.M. with a note confirming the she had been at the Health Department between 2:00 and 3:00 P.M., and that she needed a follow-up appointment. Although Petitioner still was suffering from a severe headache on Wednesday, July 9, 1986, she went to work, turning in her note from the Health Department. However, upon arriving, she was advised of HRS' July 8 letter confirming her separation from her employment. After reciting the grounds upon which HRS had taken the position that Petitioner should be deemed to have abandoned her position, the letter stated: "In the event it was not your intention to resign from employment, you are instructed to immediately contact me and provide a reasonable and acceptable explanation for your unauthorized absence from your employment." Petitioner was absent without authorized leave on July 5 and 6, 1986. Petitioner was not incapacitated from telephoning her group shift supervisor on July 7 and July 8, 1986. However, under the circumstances, it was reasonable for her to have her husband telephone for her. She did not intend to abandon her position. As of July 2, 1986, Petitioner had 27 hours of annual leave and 8 hours of compensatory time in her accumulative leave records and available for use July 5 - 8, 1986. She also would earn an additional 5 hours of annual leave and 4 hours of sick leave by July 10, 1986. This would have been enough to cover her absences and permit her to be paid during her absences if authorized and approved.
Recommendation Based upon the foregoing Findings of Fact' and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order granting the petition in this case and ruling that the circumstances of this case do not constitute an abandonment of Petitioner's position. RECOMMENDED this 3rd day of November, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of November, 1986.
The Issue Whether the Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?
Findings Of Fact Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B): JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A). In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987. Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be treated as having abandoned his position with the Department because of his unauthorized absence. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department. The Department received a letter on November 25, 1987, requesting a formal administrative hearing. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of Administration concluding that Kenneth M. Watson abandoned his career service position with the Department. DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 16th day of June, 1989. APPENDIX Case Number 88-0798 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2-3 4. 4-5 5. 6 7. 7 11. 8 13. 9 11-15. 10 16. Hereby accepted. See 17. 13 13. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989. Hereby accepted. 16 18. 17-18 2. 19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-6. 2 7. 3 9. 4 11. 5 12. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16. Hereby accepted. Not supported by the weight of the evidence or irrelevant in this de novo proceeding. Not supported by the weight of the evidence or argument. See 20. Not supported by the weight of the evidence. Hereby accepted. Irrelevant in this de novo proceeding. COPIES FURNISHED: Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue is whether Petitioner may lawfully discipline Respondent due to excessive absences from work.
Findings Of Fact Petitioner employed Respondent as a police officer in the Operations Division of the Cape Coral Police Department (Department) from October 5, 1987, through approximately April 27, 1998, when Petitioner terminated her employment. As detailed below, Petitioner monthly provides its employees with a specified amount of leave, based on their years of service. Petitioner credits all leave in a single account. Employees then draw on their leave account by taking scheduled and unscheduled leave. This case involves Respondent's use of allegedly excessive amounts of leave. In 1989, Respondent used 125.76 hours of unscheduled leave. On May 23, 1989, she received an interim performance evaluation noting that she was "below acceptable" in unscheduled leave time and needed to improve her relations with other employees. On October 13, 1989, she received an annual performance evaluation stating that she had had 18 days "sick leave" in the preceding 12 months and was below "operational standard" in attendance and relations with others; all of her other categories were marked as meeting operational standard. The attached narrative notes a "slight improvement" since her May 1989 interim performance evaluation. In 1990, Respondent used 198.5 hours of unscheduled leave. Her October 12, 1990, annual performance evaluation states that Respondent was again below operational standard in attendance with 23.25 days of "sick leave." She had raised her relations with others to operational standard and work habits to above operational standard. The narrative attached to the evaluation states that the evaluator has spent a sizable amount of time conferring with Susan regarding causes to her illnesses and resulting time off due to illness. Officer Von Halla does have problems with migraine's and when she experiences one, she is [less than] an effective part of the shift in fulfilling her normal duties. I have tried to understand why she experiences so many migraines and have suggested different activities (i.e. physical exercise, stress reduction). I am confident that despite the significant amount of time taken due to illness, when this officer calls in sick, she is sick and does not use this time for other unknown reasons. I feel, currently, Officer Von Halla is attempting to minimize the amount of times she calls in sick. Despite some improvement recently, Officer Von Halla still is in need of progress in this area so her time reserved starts reflecting this. The narrative concludes that Respondent can improve her weak point, which is attendance, by "finding new ways to minimize the migraine potential and making a genuine effort towards this." Another evaluative document speaks in a very different tone from the annual performance evaluation, which is signed by a sergeant who was Respondent's immediate supervisor. On October 2, 1990--only 10 days before the 1990 annual evaluation-- a captain reviewed Respondent's use of unscheduled leave and warned: you are hereby notified that this level of unscheduled leave time usage will no longer be tolerated. You will be required to achieve a level of usage that is consistent with the national and department average which equates to approximately sixty hours per year, or five hours per month. If you fail to maintain this rate between October 1, 1990 and December 31, 1990 I will request that the Chief of Police consider terminating your employment effective January 1, 1991. If you are successful, you will be expected to maintain this average with the exception of documented major medical complications that require the use of extended leave. By memorandum dated December 14, 1990, from the captain to the police chief, the captain stated: On October 2, 1990, I advised Officer Von Halla that she would be required to maintain an acceptable level of unscheduled leave usage through December 31, 1990. The level of usage was established at five (5) hours per month, or a total of 15 hours for the period of October 2, 1990, through December 31, 1990. . . . Since October 2, 1990, Officer Von Halla has chosen to utilize forty (40) hours of leave. Thirty-two (32) hours were for illness as noted by her chiropractor and eight (8) for unexpected visitors. The captain's memorandum reasons: "In analyzing Officer Von Halla's unscheduled leave, it is clear that her utilization of unscheduled leave far exceeds any norms and Officer Von Halla is clearly abusing this city benefit." The memorandum states that, after consulting with the city attorney and city manager, the captain was recommending that Petitioner initiate termination proceedings against Respondent. By memorandum dated January 17, 1991, the captain asked a lieutenant to convene a Command Review Board to evaluate Respondent's excessive absenteeism and her violation of three groups of general orders prohibiting feigning of illness and failing to perform duties, abusing sick leave, and engaging in any conduct adversely affecting the morale and efficiency of the Department. The memorandum explains the last alleged violation as noting that the department had had to use 66 hours of overtime, at a cost of $1125, to cover shift shortages caused by Respondent's unscheduled absences. The Command Review Board sustained the allegation that Respondent had abused her unscheduled leave, but rejected the allegations of feigning illness and failing to perform duties and engaging in any conduct adversely affecting the morale and efficiency of the department. Accordingly, the Command Review Board recommended that the police chief suspend Respondent without pay for one day. By memorandum dated February 2, 1991, the police chief adopted the findings and determinations of the Command Review Board and suspended Respondent for one day. By memorandum dated February 14, 1991, Respondent protested the proposed discipline and demanded a hearing. The arbitrator entered a decision on June 24, 1991, that the police chief had just cause for suspending Respondent for one day without pay. Respondent served this suspension. The next annual performance evaluation is dated January 25, 1992. Respondent earned marks of above operational standard in job knowledge, quality of work, initiative, work habits, and appearance. Her only mark of below operational standard was in attendance. In the preceding 15.5 months, Respondent had used 18 days of "sick leave" and had one day without pay, due to her exhaustion of leave. From May 1990 through April 1991, Respondent used 148 hours of unscheduled leave. The evaluations and memoranda from 1992 through 1994 are largely the same: average or above-average performance in all areas but attendance. The records note only the excessive use of unscheduled leave, but do not attribute the use to fraud. From January 13, 1994 through December 26, 1997, Respondent used 691.72 hours of unscheduled leave. On February 12, 1995, the former captain, now a major, recommended that the Department suspend Respondent without pay for three days due to excessive use of unscheduled leave. By memorandum dated February 27, 1995, the police chief, "with some reluctance," concurred with the recommendation of three days' suspension. On April 18, 1995, a Departmental disciplinary review board met and failed to agree on corrective action. The board recommended only that the Department remove Respondent from field duty and place her in a noncritical position. Upon further deliberations, the board agreed upon a two-day suspension. Respondent served this suspension in June 1995, and the following month a quarterly evaluation dated July 1, 1995, notes that she was still using unscheduled leave. A memorandum dated September 10, 1995, notes that Respondent used 213 hours of unscheduled leave in the first eight months of 1995. By memorandum dated September 20, 1995, the major and three of his subordinates, including the person with immediate supervisory authority over Respondent, recommended to the police chief that the Department terminate Respondent due to excessive use of unscheduled leave. Rejecting the recommendation for termination, the police chief imposed a 30-day suspension without pay, based partly on the assurance of Respondent's physician that the cause of her constant illness had been corrected. Respondent served her suspension from November 22- December 21, 1995. Quarterly evaluations in June 1996 and March 1997 note some improvement in the use of unscheduled leave. From October 1996 through September 17, 1997, Respondent used 180 hours of unscheduled sick leave. From October 1, 1997, through January 26, 1998, Respondent used 82 hours of unscheduled leave. By memorandum dated January 26, 1998, the major advised the police chief of Respondent's continued use of unscheduled leave and recommended termination. By notice to Respondent from the police chief dated February 13, 1998, the chief advised Respondent that he was considering disciplinary action, including termination. The notice cites the following grounds from Article Seven, Section C, Ordinance 50-94: excessive unauthorized tardiness or absence from work, violation of Department work rules or operating procedures, actions or conduct detrimental to Petitioner's interests, or any other properly substantiated cause that adversely affects Petitioner. The notice alleges that Respondent's conduct also violates department General Order D-1.IV.36, which prohibits excessive use of unscheduled leave. The notice summarizes Respondent's past use of unscheduled leave and the discipline that she had received. The notice asserts that she had used 96 hours of unscheduled leave in the past four months. By letter dated March 12, 1998, Respondent advised the police chief that her ear, nose, and throat physician had placed her on Predisone, which had eliminated her debilitating headaches. By letter dated March 16, 1998, the police chief provided Respondent final notice of proposed disciplinary action for the four grounds mentioned in the prior notice. Respondent has raised an issue of disparate treatment. However, the record fails to reveal other, similarly situated employees with comparable patterns of usage of unscheduled leave. The record contains a detailed record of Respondent's relevant payroll history from January 1, 1994, through May 1, 1998, on which date Petitioner terminated her. By year, these records disclose the following totals of hours for unscheduled leave and leave without pay, the latter of which is due to Respondent's exhaustion of her granted leave: 1994--190 and 48.22; 1995--201 and 148; 1996--94 and 42; 1997--174 and 58; and 1998 (four months)--32.72 and 0. The respective totals are 691.72 and 296.22 hours. Respondent's use of unscheduled leave and leave without pay far exceed the averages for the Department. Respondent is a member of a collective bargaining unit, which is represented by the Florida State Lodge of the Fraternal Order of Police (FOP). Petitioner and FOP negotiated a collective bargaining agreement in effect from October 1, 1997, through September 30, 2000 (Agreement). Article 3, Section 1, of the Agreement provides: Except as specifically abridged or modified by a provision of this Agreement, City will continue to have, whether exercised or not, all of the rights, powers and authority heretofore existing, including, but not limited to, the following: . . . to hire, transfer, promote and demote employees; to direct employees, to take disciplinary action up to, and including, termination; to relieve employees from duty because of lack of work or for other legitimate reasons; [and] to issue rules and regulations . . .. Article 10, Section 2, of the Agreement describes the forms of discipline as follows: In accordance with Police Department General Order D-1 (as dated April 1, 1993), forms of corrective action will be utilized by City with the approval of the Police Chief shall include: Counseling or Re-Training--to correct and improve employee performance; Reprimand--a written statement warning the employee of the consequence of future misconduct of a similar nature; Suspension-- suspension from duty without pay; Demotion--a change to a position of lesser responsibility and salary; and Termination--dismissal from the Police Department. Article 10, Section 3, of the Agreement provides that Petitioner shall use "[p]rogressive corrective action," unless the severity of the offense dictates a more severe action. Article 11 of the Agreement provides that Petitioner may take disciplinary action against an employee for "just cause." Article 15, Section 1(a), of the Agreement grants employees with five or less years of continuous service 25 days of annual leave per year. Article 15, Section 1(b), grants employees with 6-10 years of continuous service 30 days of annual leave per year. The remaining subsections grant more leave based on years of service. Article 15, Section 1(g), of the Agreement provides: The use of annual leave for other than illness must be scheduled with the employee's supervisor. In case of illness, an employee must notify his/her supervisor not later than two (2) hours before the beginning of the scheduled work day or in accordance with Police Department Rules and Regulations. The Agreement provides that Petitioner may discipline covered employees for "just cause," but does not identify what constitutes "just cause." Ordinance 50-94 (Ordinance) sets forth the rules and regulations governing all of Petitioner's employees. Article One, Section B.2, states that the Ordinance covers employees who are parties to a collective bargaining agreement, "except that in the event of a conflict between the terms of this Ordinance and the collective bargaining agreement, the collective bargaining agreement shall govern." Article Six, Section E, provides that an employee may be dismissed for "just cause," but that the department head must comply with the procedures in Article Seven prior to termination. Article Seven, Section B, requires progressive discipline for "the same or similar conduct by the employee," although Petitioner reserves the right to impose the most severe discipline as an initial measure "when circumstances warrant." Article Seven, Section C, cites several grounds for discipline, including "[g]ross neglect of duty or specific serious failure to perform assigned duties"; "[m]ental or physical impairment, normally as supported by written documentation from not less than two licensed physicians, that prevents the employee, even with reasonable accommodation, from performing the essential functions of his or her position"; "[a]bsence without leave, or failure to give proper notice of absence"; "[e]xcessive unauthorized tardiness or absence from work"; "[v]iolation of Department work rules or operating procedures"; "[a]ctions or conduct detrimental to the interests of the City"; or "[a]ny other properly substantiated cause which adversely affects the City." Article Seven, Section D, requires that the employee proceed with a grievance for proposed discipline under the ordinance or collective bargaining agreement. Section E.5 describes the hearing conducted under the ordinance, which is the procedure that Respondent elected, and states, at Subsubsection 7, that the Administrative Law Judge is to determine if Petitioner proves by a preponderance of the evidence "just cause" for the discipline. Subsubsection 8 provides that the order is a final order. Subsubsection 9 provides for judicial review. Article Eleven describes attendance and leave. Section A.6.a provides that fulltime employees shall be present at their assigned jobs, "unless absence from duty is authorized by the Department Head as provided herein." Section A.6.c states in part: Excessive unscheduled absences or tardiness shall be grounds for disciplinary action. For purposes of this paragraph, "excessive unscheduled absences or tardiness" shall mean use which is in excess of the average number of hours and/or occurrences of unscheduled leave taken by other City employees in the same or similar positions . . .. Article Seven, Section E.3, defines unscheduled leave as that which the employee requests and the supervisor approves on the day that it is taken. This section states: "An employee's excessive use of unscheduled leave may be grounds for disciplinary action." Section E.1 contains a schedule for the accrual of leave, and the applicable monthly accrual rate, which increases with seniority, applies to the total of each employee's scheduled and unscheduled leave. Department General Order D-1 (General Order), as last revised on December 11, 1995, provides, at Section II, that it applies to [ALL] members of the Department. This section states that the police chief will use progressive discipline, "unless the severity of the offense dictates a more severe action." Section IV prohibits various acts, including feigning illness, avoiding responsibility, or failing to perform one's duties; "excessive use of unscheduled leave"; or engaging in conduct that adversely affects the morale and efficiency of the department. By memorandum dated July 20, 1987, a major in the Department advised all operations division personnel that absences, "regardless of cause," weaken the Department's ability to serve the public though personnel shortages, increase personnel costs due to overtime to cover absences, and increase burdens on other employees. The safety of the public and law enforcement officers requires a minimum staffing of law enforcement officers on each shift. The absence of a scheduled officer requires that the Department pay overtime for an unscheduled officer to report for duty. The record does not demonstrate that unscheduled absences of an officer, up to the total amount of granted leave, compromise the safety of the public or other officers. The contrary inference is precluded in part by the fact that, in the Agreement, Petitioner grants each officer a certain amount of leave and does not further restrict the officer's choice to use his or her granted leave as unscheduled leave. However, the use of unscheduled leave in excess of the granted leave is not anticipated by the Agreement and may compromise the safety of the public and other officers.
Findings Of Fact Petitioner in this case is K. Kristine Nowacki. She was employed as an attorney in the office of the legal counsel for Respondent's District One in Pensacola, Florida, from November 14, 1988, until termination of her employment on June 9, 1989. Respondent is the Department of Health and Rehabilitative Services. Petitioner's immediate supervisor was Rodney Johnson, the district's chief legal counsel. Cheleene Schembera was Johnson's immediate supervisor and chief administrator of District One. Upon commencement of Petitioner's employment, the work force in the legal office consisted of Johnson, a male, and Teresa Goodson, another female attorney. Another attorney, Randy Werre, was male and began employment in March of 1989. Since Petitioner had never used a dictaphone and could type exceedingly fast, 140 words per minute, she was given a word processor to prepare preliminary drafts of her work products. Word processing equipment was limited in the office. Johnson considered the provision of such equipment to Petitioner to be an exceptional employee benefit, as opposed to a burden or impairment. Petitioner never requested that she be provided with a dictaphone. Both Johnson and Schembera were concerned about Petitioner's dress and appearance. On separate occasions, both individuals spoke with Petitioner about a need to effect changes in her personal dress and grooming habits. When Johnson offered employment to Petitioner, he discussed with her the need to do something with her long, bushy and unkempt hair style. Prior to his employment offer to Petitioner, Johnson was told by Schembera that he should counsel with Petitioner about her hair style if he intended to hire Petitioner. However, the need to change dress or hair style was not a condition of employment. On January 11, 1989, Johnson spoke with Petitioner and noted that she had handled a difficult evidentiary matter in a hearing that day. However, Johnson's comments did not amount to an endorsement of Petitioner as a person with potential to become a great trial attorney. Petitioner was hired to serve as Johnson's "backup" and to effectively take Johnson's place in the event of his absence. Petitioner never developed such capability in the course of her employment with Respondent. Although Schembera spoke with Petitioner on April 21, 1989, regarding the need for Petitioner to adopt a more conservative hairstyle and dress, Schembera sought to provide Petitioner with guidance in order that Petitioner might retain the respect of her peers. Schembera told Petitioner that the discussion had no significance with regard to Petitioner's job. Such counselling by Schembera is not unusual. She has counseled with other employees concerning dress or hair styles when she considered such action to be appropriate. On at least one occasion in proximity to Petitioner's employment, Schembera counselled a male employee regarding the necessity of that employee obtaining a hair cut. Schembera even-handedly applied her grooming code to both male and female employees. Petitioner was unable to properly perform her job duties. In the judgement of her supervisors, she did not adequately prepare for hearing or otherwise adequately present Respondent's position in numerous hearings. As an attorney in Respondent's employment, Nowacki was a select exempt employee serving at the pleasure of Respondent. As such an employee, Petitioner's employment could be terminated at any time by Respondent. By letter dated June 9, 1989, Johnson informed Petitioner that her employment had been terminated. Her gross wages at the time of discharge from employment were $788.46 biweekly. The testimony of Petitioner's immediate supervisor, Rodney Johnson, was candid, consistent and creditable. That testimony establishes that Petitioner's employment was terminated because of her work performance. Neither dress nor hair length or style were factors in her termination. Johnson felt that Petitioner's appearance had begun to improve at the time of her employment termination. Petitioner's testimony, as a result of inconsistencies in that testimony and her demeanor while testifying, is not credited and fails to establish that her supervisors unlawfully terminated her employment. During the course of her seven months of employment, Petitioner made extensive use of sick leave. From an initial allotment of 104 hours, Petitioner used all but 17 hours of that leave amount. On June 27, 1989, Petitioner filed a charge of discrimination against Respondent alleging termination of employment on the basis of sex.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered dismissing the Petition for Relief. RECOMMENDED this 26th day of August, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6600 The following constitutes my ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Adopted in substance. Rejected with regard to pregnancy comment, credibility. Rejected, legal conclusion, argumentative and a mere restatement of Petitioner's position. The creditable evidence establishes that Petitioner was hired and retained in employment until her lack of capability was demonstrated. Rejected, Petitioner's testimony in this regard is not credited. As established by Johnson's testimony, which is credited, one of Petitioner's asserted strengths was her typing capability and she was provided a word processor as a benefit. Petitioner did not establish that she objected to this arrangement at the time. Rejected, creditability, insofar as grooming and dress requirements comprising employment conditions. Adopted in substance. 7.-8. Rejected, relevancy. Rejected, Petitioner's version is not supported by weight of the evidence, creditability. Rejected, relevancy. Adopted in substance, but not verbatim. Rejected, not supported by the weight of the evidence. 13.-16. Rejected, relevancy. 17. While Schembera frankly admitted her dislike for Petitioner's dress and grooming and also accepted responsibility for the ultimate approval of the decision to terminate Petitioner's employment, this testimony does not establish that the basis for employment termination was other than Petitioner's job performance. This proposed finding must be rejected as a mischaracterization of Schembera's testimony. 18.-19. Rejected, unnecessary. Adopted. Rejected, not supported by weight of the evidence. 22.-24. Rejected, unnecessary. Respondent's Proposed Findings 1.-21. Adopted, although not verbatim. 22.-25. Rejected, relevancy. 26.-28. Adopted by reference. 29.-30. Rejected, relevancy. 31. Adopted in substance. COPIES FURNISHED: John Barry Kelly,II, Esq. 15 West Main Street Pensacola, FL 32501 Peter S. Fleitman, Esq. Lynda Quillen, Esq. Department of Legal Affairs The Capitol-Suite 1501 Tallahassee, FL 32399-1550 Ronald M. McElrath Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
Findings Of Fact At all times relevant, Petitioner was employed as a Clerk Typist with Respondent. Petitioner did not report to work on February 3, 4 and 5, 1988. Respondent's leave policy is that leave should be requested in advance; if an employee gets sick, he or she needs to call in. Petitioner had not requested leave prior to February 3, 1988. On February 3, 1988, Ms. Lester, a co-worker of Petitioner's received a telephone call from a Ms. Williams who stated that Petitioner was in the hospital. Ms. Baker, Petitioner's supervisor, called three hospitals in the area and none had a Ms. Stanyard listed as a patient. Also, she contacted Ms. Stanyard's brother and another person, neither of whom had any knowledge of Petitioner's whereabouts. Finally, Ms. Baker went to Ms. Stanyard's home, but could not find Ms. Stanyard. As of the end of the day on February 5, 1988, Petitioner had not contacted her supervisor or her office.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Administration issue a final order ruling that Petitioner abandoned her position and resigned from the career service. DONE and ORDERED this 29th day of September, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988. COPIES FURNISHED: Ms. Ethelda Stanyard 7855 Wilson Boulevard Apartment 17 Jacksonville, Florida 32210 Scott D. Leemis Assistant District Legal Counsel Post Office Box 2417 Jacksonville, Florida 32231-0083 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The undersigned convened the final hearing at 9:40 a.m. on January 29, 2014, having allowed Petitioner additional time to appear. Respondent’s counsel made his appearance for the record. The undersigned informed Respondent’s counsel regarding Petitioner’s communication stating his intent not to appear. Respondent’s counsel was questioned about any acquaintance with the undersigned and confirmed that he never met nor communicated with the undersigned before the hearing on January 29, 2014.
Recommendation Based upon the fact that Petitioner failed to present any evidence in support of his Petition, it is RECOMMENDED that the Florida Commission on Human Relations enter an order dismissing this case. DONE AND ENTERED this 29th day of January, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Torri Holmes 1700 North Monroe Street, Suite 11-263 Tallahassee, Florida 32303 Elwin R. Thrasher, III, Esquire The Thrasher Law Firm 908 North Gadsden Street Tallahassee, Florida 32303
Findings Of Fact Respondent, Theresa L. Beadle, began her employment with petitioner, Department of Health and Rehabilitative Services (HRS), on or about July 1, 1982. She held the position of clerk typist II with an AFDC unit at HRS' Miami district office. Her position was considered a "pivotal" one by HRS personnel because it was Beadle's responsibility to keep and maintain the unit's case records for recipients. Therefore, attendance was an important criterion for her position. Beadle has suffered from coccygodynia (severe pain of the tailbone) and low back pain for at least three years and has been treated for this condition by both a chiropractor and a physician. According to one of her physicians (Dr. Shuflitowski), she should not engage in "heavy lifting (or) long-stretching of the arms." However, Beadle's job duties do not require these activities, and her physician confirmed in a letter to HRS on December 31, 1986 that "there is no justification for her being unable to perform her job as indicated." In addition to her back ailment, Beadle has also suffered from depression principally caused by the recent death of both her mother and her only son in October, 1986 and January, 1987, respectively. She has been treated by a psychiatrist (Dr. Betancourt) for this condition. After a brief absence from work in early October, 1986, caused by her mother's death, Beadle returned to work on or about October 4, 1986. On December 11, 1986 she left work saying her son was seriously ill in Connecticut. She did not formally obtain leave to do so. Around December 29, her daughter visited HRS' office and spoke with the program administrator, James Sanders, and told him that after speaking with her mother by telephone, she did not know when her mother would return to work. On December 30, 1986 Sanders advised Beadle by certified mail that she was "directed to report to (her) official position by 8:30 a.m. on Thursday, January 8, 1987 . . . (or she would be) deemed . . . (to) have abandoned (her) position and to have resigned from the Career Service." On January 4, 1987 Beadle's son passed away, and his funeral was held on January 8. Beadle eventually returned to Miami in mid-January. Although she did not return to work at that time, Beadle telephoned Sanders' supervisor, Barbara Coles, on January 15 and was told by Coles to either contact Sanders or her immediate supervisor, Albert Peart, concerning her situation by January 16. She did not contact either person. On January 20, Beadle's daughter telephoned Sanders to say her mother was unable to come to work. On January 23, Beadle sent Sanders a "disability certificate" from a Dr. Ticktin, a Hialeah orthopedic surgeon, who attested that Beadle had been under his care since January 15 and would be "totally incapacitated" until February 5. However, he also wrote a cover letter stating that Beadle had an appointment on January 15 and could "return to work with no heavy lifting." After receiving the above certificate, Sanders wrote Beadle by certified mail on January 23 advising that she was "directed to report to work immediately and provide an explanation for her absences." Again, Beadle did not directly respond to this letter but had Dr. Betancourt, a Miami Shores psychiatrist, send a letter to HRS on February 5 stating that Beadle was under his professional care and could not return to work until February 20. A disability certificate was later sent by Dr. Betancourt attesting that Beadle was "totally incapacitated from January 15 to February 19" and could not return to work until March 6, 1987. Upon receipt of Dr. Betancourt's correspondence, Sanders sent Dr. Betancourt a letter on February 23 requesting further medical information to verify her medical condition. On February 27, Dr. Betancourt responded and advised that although Beadle was suffering from depression, she could "perform (her) duties without any limitations." He also suggested she be transferred to another position "with fewer environmental stressors." On March 12, Beadle returned to work for a "few days," but left soon afterwards to go to Plant City for an undisclosed purpose. There is no evidence that she requested leave to do so. She never returned to work. On March 30, 1987, Coles contacted Sanders about Beadle's absences, and told him he was in danger of being charged with negligence for not taking any action against Beadle. Up to this time, Sanders had not initiated disciplinary action because, in his words, he wanted to give Beadle a chance to return, was a "softie," and knew that being fired was a "traumatic" experience. However, now fearing for his own situation, Sanders wrote Beadle on April 15 requesting a medical certificate and advising her that unless her supervisor (Peart) received a certificate by April 22, all leave used by Beadle after that date would be "unauthorized." Apparently responding to the above request, Beadle had Dr. Betancourt prepare a certificate stating that Beadle had been under his care from April 2 to April 20, but could return to work on April 20. This certificate was received by HRS on April 17. On April 21, Dr. Betancourt sent Sanders a letter stating that "Beadle would like to request a leave of absence for six months because of her emotional turmoil and recent trauma." During this same period of time, Beadle did not personally contact Peart, Sanders or Coles concerning a leave of absence. Confronted with this maze of disability certificates and conflicting medical advice, HRS decided to have Beadle evaluated by another physician. It accordingly advised her by certified mail dated May 4 that she should contact a Dr. Gilmore and make an appointment for an examination. The letter was not picked up by Beadle and was returned to HRS unclaimed. Two other certified letters sent on May 12 and 14 to Beadle were also unclaimed. Beadle never made an appointment with nor was she examined by Dr. Gilmore. On June 25, Beadle was advised by certified mail that in view of her failure to contact her supervisor since her last day of work on March 31, 1987, or to request leave, she was terminated effective upon receipt of the letter. Beadle received the letter, and thereafter requested a hearing to contest the action. Beadle pointed out that she had experienced a series of problems with her supervisor (Peart) who continually harassed her after her return on October She also stated her job evaluations were always good until she was transferred into Peart's unit, and that in her fragile emotional state caused by her recent tragedies, she could not cope with the job stress generated by Peart's harassment. She also pointed out that a request to Sanders to transfer units was ignored. She conceded that she had signed a statement acknowledging she had read and understood the employee's handbook. This handbook explains the unauthorized absence rule, and the need to obtain authorized leave before being absent from work. She also conceded she had been absent for more than three consecutive workdays since March 31, 1987 without having authorized leave. Beadle wishes to eventually return to work, but not in the same unit, and only after she is psychologically able to cope with job stress.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Theresa L. Beadle abandoned her job with petitioner. DONE AND ORDERED this 9th day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of November, 1987.
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: constructively discharging Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent Lake County Sheriff's Office (LCSO), constitutes an "employer" as defined in Chapter 760, Florida Statutes. Chris Daniels took office as the elected Sheriff of Lake County, Florida, in January 2005. He had been with Respondent LCSO for 18 years. The sheriff is the chief law enforcement officer for Lake County; operates the Lake County Jail for the Board of County Commissioners; and manages security and bailiffs for the Lake County Courthouse. His responsibilities also include providing final approval for staffing levels at the Lake County Jail. In 2005, Petitioner had been employed as a detention officer at the Lake County Jail for 16 years. He is a certified corrections officer. Corrections/detention officers assigned to the inmate housing/security areas at the jail work 12-hour shifts from 6:00 a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or "D" Squads. The squads rotate from day to night, and from night to day, shifts every four months. Officers assigned to inmate security are not normally assigned permanent shifts. Petitioner was such an officer. Working on rotating shifts is an essential function of working in the inmate housing area of the jail, as detailed in the job description for corrections officers as follows: . . . ensures a timely transmission of pertinent information and materials to other correctional personnel assigned to the same and/or the next shift. Petitioner understood at the beginning of his employment with LCSO that he was expected to work rotating shifts, and he did, in fact, work rotating shifts until 1996. Other corrections officers assigned to laundry, the jail kitchen, inmate transportation and other administrative functions permanently work days from 8:30 a.m. to 5:00 p.m. Monday through Friday, without shift changes. Such positions with permanent day shifts have become available over the years. However, Petitioner last sought such a position in 1997 or 1998. Petitioner was working as a detention/corrections officer for Respondent when he was diagnosed with diabetes in 1996. Petitioner's diabetes causes tingling in his hands and feet, impotence, floaters in his eyes, dizziness, profuse sweating, frequent urination, a weakening immune system and occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals that he takes multiple oral medications and that each kind of medication ideally should be taken at the same time of day, each day, but there are instructions on how to compensate if a dose is missed. With the exception of working rotating shifts, Petitioner was able at all times to perform the essential functions of a corrections officer for Respondent. The Veterans’ Administration pays Petitioner $218.00 per month because it believes his diabetes was induced by Agent Orange he encountered while in Viet Nam. At Petitioner's request, Respondent allowed Petitioner to work a permanent day shift from 1996 to June 30, 2005, when he retired. Petitioner testified he has worked in the past as a military medic and as a physician's assistant in correction facilities, so he is knowledgeable about the horrific, and sometimes fatal, effects of uncontrolled diabetes. Petitioner expected to live a normal life so long as he controlled his diabetes. Petitioner claims to have explained over the years to all his superiors that he needed to consistently take his medications at the same time of day. However, he did not offer any evidence in the present proceeding to explain why he could not take his medications consistently on a 24-hour clock, e.g. during nights, as opposed to during days. There have been periods when he experienced problems with his diabetes while working a permanent day shift. His medications have been adjusted several times since 1996. All witnesses agreed that Petitioner spent 18 months alone in a permanent day position in the third-floor control room. Petitioner claimed that he was assigned this long period of duty on the third-floor as “punishment” for being allowed to permanently work a day shift. He maintained, without any supporting evidence, that being assigned to a single position for more than a few months this way was unusual. However, although Respondent assigned Petitioner to the third-floor control room alone for a duration of 18 months, Respondent also assigned a non-diabetic employee alone there for about one year. Petitioner speculated, again without any supporting evidence, that the non-diabetic employee was also being punished for something. Both Petitioner and the non-diabetic employee experienced being confined to the control room without a restroom. Having to urinate when no other officer could stand- in for them created a hardship on both men. On one occasion, the non-diabetic employee urinated in a garbage can. At the date of hearing, Gary Borders had been with LCSO for 17 years and served as its Chief Deputy.1/ On the date of hearing, and at all times material, Chief Borders’ duties included responsibility for the day-to-day operations of the Lake County Jail and the Lake County Courthouse and for training. Petitioner claims to have frequently protested to many superiors about not having a restroom on the third-floor and not being allowed to bring food in for his diabetes. He also claimed to have specifically asked Chief Borders to be transferred from service on the third-floor, but Chief Borders did not recall more than one vague conversation concerning Petitioner’s complaint about how long Petitioner had been posted there and that he had told Petitioner he, Borders, had no problem with Petitioner’s being transferred elsewhere in the jail. It is not clear when, precisely, this 18 month-period occurred. Because Petitioner was on a permanent day shift from 1996-1997 to 2005 (eight years), and Petitioner testified his 18-month posting on the third-floor was "over" and was from 2003-2005, his time on the third-floor was not affirmatively shown to have occurred within the 365 days immediately preceding the filing of his Charge of Discrimination with FCHR on December 8, 2005. When Sheriff Daniels took office in January 2005, Chief Borders advised him that because the date for the squads to rotate shifts (see Finding of Fact 4) was due to occur on May 1, 2005, the number of persons assigned to permanent shifts was affecting Chief Borders' ability to make assignments. When corrections officers working in inmate housing of the jail are assigned permanent shifts, staff shortages can occur on other shifts. Chief Borders further advised the new sheriff that he, Borders, was receiving additional requests for permanent shifts. While discussing why there were so many employees assigned permanent shifts, and not subject to the standard four months' rollover of the squads from day-to-night and night-to- day shifts, Sheriff Daniels and Chief Borders concluded that LCSO needed a formal method of differentiating between those employees who genuinely needed a permanent day or night shift and those employees who merely wanted a permanent shift assignment. To determine which employees needed a permanent shift as an accommodation for their specific condition or situation, Sheriff Daniels instructed Chief Borders to send a memorandum to the 12-14 employees assigned to permanent shifts, requiring those employees to provide medical evidence of their need for a permanent shift assignment. On March 25, 2005, Chief Borders sent all employees assigned to permanent shifts the following memorandum: There is a requirement for rotating shift work for Detention Deputies, Auxiliary Detention Deputies and Deputy Sheriffs at the Lake County Sheriff's Office. Please ask your physician to review the Job Description for Detention Deputy (or Auxiliary) and ask if you can perform all the job requirements. If you are cross- sworn, also have your physician review the Deputy Sheriff job description and ask if you can perform all of the job requirements for that position. When your job description(s) have been reviewed, bring your physician's letter and all related supporting material (diagnosis, prognosis, treatment notes, test results and any other documents that would assist the agency in evaluating your request) to me so that our agency physician can review them for possible accommodation. Because shift changes will take place on May 1, 2005, you must have your documents to me no later than 5:00 P.M. on Friday, April 15, 2005. If I do not hear back from you by Friday, April 15, 2005 at 5:00 P.M., I will take it that you are available for rotating shift work assignment. The process envisioned by the Sheriff and Chief was that when an employee, who wanted an accommodation, provided the requested information from his own treating physician, that employee's supervisor would pass the information along to LCSO's physician, and an interactive process would begin. As of the date of hearing, LCSO had employees working in modified jobs, including job sharing, and an accommodation had been made for a person in a wheelchair. In 2005, LCSO also fully intended to accommodate those employees who provided proof from their physicians of their need for other accommodations. Petitioner testified that he did not want to repeatedly roll over from day-to-night shifts every four months because past experience had taught him that each time his shift changed, it took him at least two weeks to properly regulate and space his intake of food, liquids, and medications, in such a way that his diabetes was controlled and he felt alert and capable. In response to receiving the March 25, 2005, memorandum, Petitioner presented Chief Borders with a note from Petitioner's primary physician, Dr. Gelin, written on a prescription pad, stating: brittle diabetic pt needs to work day shift only. Petitioner did not present any other written information in response to Respondent LCSO’s detailed request. Petitioner testified that he discussed Dr. Gelin’s note with Chief Borders to the extent that he told Borders that if anyone on behalf of LCSO phoned Dr. Gelin, Dr. Gelin would discuss or fax further information to that person; Chief Borders does not recall this conversation. Chief Borders is a diabetic himself, but he had never heard the term, "brittle diabetic." It is Petitioner's position that because, in Dr. Gelin's private conversations with Petitioner, Dr. Gelin had told Petitioner that “any doctor” should know the sequelae and effects of "brittle diabetes," all Petitioner’s LCSO superiors needed to do was pass on Dr. Gelin’s prescription note to LCSO’s consulting physician in order for Petitioner to be accommodated. Petitioner believed it was his superiors' duty to make Dr. Gelin submit the written materials they wanted. Sheriff Daniels generally distrusted the information that physicians submitted on prescription pads, because, in his experience, when the employee or physician was pressed for details, there was often no supporting information forthcoming. Therefore, he did not believe the information on Petitioner's prescription slip, as described to him by Chief Borders, was sufficient to begin the interactive process with LCSO’s Human Resources Department or its consulting physician. Neither Sheriff Daniels nor Chief Borders presented Petitioner's prescription slip to them. It was decided between the Sheriff and the Chief, that Chief Borders would try to get more detailed information from Petitioner. Petitioner testified that he tried to get more information from his primary physician, Dr. Gelin, but Dr. Gelin would not provide in writing the detailed information requested by LCSO’s March 25, 2005, memorandum. On April 22, 2005, Chief Borders wrote Petitioner that Dr. Gelin's prescription pad note was insufficient and that Petitioner would not be reassigned to a permanent day shift position, stating: I have reviewed the information provided by your physician and find there is insufficient evidence presented to justify a permanent shift assignment. As such, your request is denied. You will rotate day/nights with your assigned shift during the normal rotation. None of the 12-14 employees assigned to permanent shifts, had submitted the requested information, so all of them, including Petitioner, were assigned to a rotating shift. The Sheriff and Chief received no report of complaints from any employee. However, on April 26, 2005, Petitioner received a memo stating that effective May 4, 2005, he would be assigned to "C" squad. "A" Squad, where Petitioner was then assigned, was scheduled to rotate from day shift to night shift on May 1, 2005, and "C" Squad was due to rotate from the night shift to the day shift on the same date. Accordingly, LCSO’s purpose in transferring Petitioner to “C” Squad was to provide him with four more months (until September 1, 2005) to obtain the required medical opinion and detailed supporting documentation from his treating physician. The "A" to "C" Squad change also would have allowed Petitioner to remain on a day shift, without interruption, and allow him an additional four months in which to gather medical information from any appropriate source to support his request to indefinitely remain on a permanent day shift. In fact, Petitioner was regularly seeing Dr. Flores, at the Veterans’ Administration, as well as Dr. Gelin. Dr. Flores coordinated oversight of Petitioner's medical condition with Dr. Gelin, who is Petitioner's private physician. However, Petitioner did not approach Dr. Flores, and he did not go back to Dr. Gelin, until after Petitioner retired. Petitioner had hoped to work another six years before retiring, but on May 13, 2005, while still assigned to the day shift, Petitioner submitted a letter of resignation, hoping that someone in his chain of command would try to talk him out of leaving. He expected his supervisors to "workout" a permanent day shift for him, instead of permitting him to retire.2/ Petitioner's resignation letter stated: Regrettable [sic] I am submitting my letter of resignation effective June 30, 2005. Your recent decision denying me permission to remain on the day shift in spite of my doctor's recommendation to remain on the day shift because of my medical condition (brittle diabetic) has forced me to retire earlier than I had planned to. There is no other way that I can regulate my medication switching from days to nights . . . Respondent never required Petitioner to work the night shift, and he never did work the night shift after 1996-1997. Petitioner gave notice of his retirement in May 2005, rather than work in "C" Squad on the day shift until September 1, 2005, or continue to try to obtain additional medical information that would allow him to indefinitely remain on a permanent day shift. Petitioner elected to retire effective June 30, 2005, because, upon advice of “Retirement” he believed it was more financially beneficial for him to retire in June 2005, rather than wait until January 2006.3/ Since January 1, 2006, Petitioner has been employed managing real property in Florida and Costa Rica. Petitioner testified that when he retired, he could perform all the duties required by his detention/corrections officer job description, and perhaps other duties as well, except for the rotating shifts. He believes, but offered no supporting documentation, that rotating shifts are counter- productive and are on their way out in most jails. He further testified that he could probably even work the rotating shifts required by this employer but he believed that to do so would have put him in a health crisis due to his diabetes and multiple medications.
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. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2007.
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
