The Issue The issue is whether Petitioner is entitled to recover salary that it claims that it overpaid Respondent.
Findings Of Fact Petitioner employs Respondent as a detention care worker in a juvenile detention center in Miami. She is presently classified as a Senior Juvenile Detention Officer. Respondent's highest education is a high school diploma. She has worked 27 years for Petitioner and its predecessor agency, the Department of Health and Rehabilitative Services. In early January 2004, Respondent was hospitalized at least a couple of times for surgery. Upon her release from the hospital, Respondent's physician directed her to rest and not to return to work. She remained under these doctor orders, and thus out of work, continuously until April 29, 2004, when Respondent returned to work. Respondent exhausted her sick and annual leave prior to returning to work. The sole issue in this case is whether Respondent and her coworkers effectively completed transfers of their sick leave to her. Due to its payroll administration procedures, Petitioner paid Respondent her normal salary for a period of time for which Petitioner did not work and had no remaining sick or annual leave, so, absent an effective transfer of sick leave from coworkers, Respondent would have received overpayments during this time. The salary payments in dispute are $409.70 for the pay period ending March 25, 2004; $1399.71 for the pay period ending April 8, 2004; $1477.53 for the pay period ending April 22, 2004; and $518.08 for the pay period ending May 6, 2004. These payments total $3805.02. Petitioner has adopted a policy governing the transfer of sick leave between employees. Petitioner Policy 1002.03, Part III.F, Procedures for Sick Leave Transfer (Sick Leave Transfer Policy), sets forth the procedures applicable to leave donors, leave recipients, and Petitioner's Bureau of Personnel. With respect to the leave recipient, Sick Leave Transfer Policy provides: In order to receive donation of sick leave, the employee (recipient) must complete the Interagency Sick Leave Transfer Request (Request to Use) Form (Attachment 2) and submit it to the Bureau of Personnel on or before the pay period the employee is eligible to use the leave. The receiving employee (recipient) must submit medical certification to the Bureau of Personnel of the continued illness of the employee and the inability to return to work, by completing the Sick Leave Transfer Request (Request to Use) Form. The Request to Use Form is incorporated into the Sick Leave Transfer Policy. It is a one-page preprinted form consisting of two parts. Entitled "Request to Use Donated Sick Leave," Part I is a signed, dated statement from the employee that states the date on which the absence began or will begin and adds: I certify that I have suffered an illness, accident or injury. I further certify that I have expended all my personal leave credits and this is to request use of donated sick leave hours to cover my absence due to my current personal illness, accident or injury. I authorize my employer to use my name and release a general description of the medical circumstances in order to determine my eligibility in accessing this benefit. Entitled "Medical Documentation," Part II of the Request to Use Form comprises two subparts. The first part of the form consists of a statement from the employee that he or she is seeking donated sick leave and authorizes any medical practitioner to complete Part II and answer any questions concerning the employee's eligibility. The second part of Part II of the Request To Use Form follows a line stating: "To Be Completed by the Treating Medical Practitioner Only." The information to be supplied by the practitioner is identifying information, the "date of which patient was first examined for current condition," the "date patient is expected to recover or be released to duty," and any restrictions imposed upon the patient's release to duty. The last line of Part II states in boldface: "Return this form (marked confidential) to:" Instructions for Authorized Use of this Form: In order for the patient to comply with eligibility requirements, the treating medical practitioner must complete this form and return it to the patient's employer directly or via the patient. In smaller print, immediately following the last statement, the Request to Use Form states: "Return to Bureau of Personnel, Benefits, 2737 Centerview Drive, Tallahassee, FL 32399-3100." This case turns on whether Petitioner timely received the Request to Use Form. Petitioner does not dispute that it timely received sufficient Request To Donate Forms to cover the amount of the claimed salary overpayments. On March 31, 2004, Respondent faxed a seven-page package of documents to George Sumpter, who was Petitioner's Sick Leave Donations Coordinator in Petitioner's Benefits group in the Bureau of Personnel in Tallahassee. This package consisted of executed Request to Donate Forms. Respondent faxed these forms to 850-921-6700. On April 30, 2004, the day after she returned to work, Respondent faxed a 12-page package of documents to Mr. Sumpter. This package included an executed Request to Use Form and medical certification. Respondent's Bureau of Personnel thus received sufficient documentation to process the sick leave transfers during the pay period that ended May 6, 2004, as the policy requires that the documentation be submitted "on or before the [subject] pay period." Respondent faxed an executed Request to Use Form in late February or early March. She faxed the materials to the lone Bureau of Personnel liaison present in the Miami facility at which Respondent worked. Respondent believed either that submitting the materials to the Miami liaison would suffice or, if not, the Miami liaison would forward them to where they needed to go. It is difficult to determine what happened to these forms. No one in the Bureau of Personnel was very helpful to Respondent, who was able to obtain copies of the Request to Donate and Request to Use forms from a friend in the Department of Education. Somehow, while still recuperating from surgery and ill health, Respondent was able to obtain a copy of a list of telephone and fax numbers for various groups within Petitioner's Bureau of Personnel in Tallahassee, but the list was old and did not have Mr. Sumpter's name on it, nor did the list clearly indicate which fax number to use for submitting the Request to Use and Request to Donate forms. Learning that Mr. Sumpter claimed not to have received the first package, Respondent refaxed the package to him in March. At some point, Mr. Sumpter acknowledged that he had received the Request to Use Form package, but he told Respondent that he had received it too late for her to be able to use any of the donated sick leave. When Respondent persisted in asking that he allow her to use the donated sick leave, Mr. Sumpter told her to file a complaint with Petitioner's Inspector General's Office. Respondent contacted the Inspector General's Office, where no one was able to help her. Mr. Sumpter did not testify at the hearing. However, a document maintained in the Bureau of Personnel files discloses that Petitioner had received the Request to Use Form on April 1, 2004. However, the same form states that Petitioner did not receive the "Medical Documentation Form" until May 28, 2004. Prior to April 1, 2004, Respondent repeatedly sent faxes to Bureau of Personnel representatives in Miami and Tallahassee. Included in these faxes were all of the documentation necessary to process the sick leave transfers from the donors to Respondent. During the period in question, Petitioner was undergoing significant employee turnover. On this record, it is more likely than not that Respondent timely submitted, by no later than the first pay period in question in this case, all of the duly executed documentation necessary to effect a transfer of the donated sick leave to her.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing its claim of salary overpayment to Respondent. DONE AND ENTERED this 26th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2004. COPIES FURNISHED: Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Linville Apkins Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Elizabeth Judd, Qualified Representative 99 Northwest 183rd Street, Suite 224 Miami Gardens, Florida 33169 Yvette Demeritte 1730 Northwest 1st Court, Apartment 7 Miami, Florida 33136
The Issue Whether, under the facts and circumstances of this case, petitioner is deemed to have abandoned his position and resigned from the Career Service.
Findings Of Fact Mr. Willie L. Claridy was an employee of the Department of Transportation for 2 or 3 years and was under the immediate supervision of Daniel E. Skinner at the Sarasota Maintenance Office for approximately a year, including March and early April of 1984. On or about Monday, March 26, 1984, while in the outside shop area at his place of employment, Mr. Claridy mentioned taking a vacation to some fellow employees. He said he was going home to a family reunion. The employees moved into the office area, and the conversation continued. Mr. Skinner, who was petitioner's supervisor, Mr. Campbell, Mr. Claridy, and two others were present in the office. During the conversation in the office, Mr. Claridy stated that he was going to take a vacation; however, he never specifically asked for leave, he was not told that he could have leave, and no specific dates were mentioned. 1/ Although Mr. Skinner could not recall the discussion regarding Mr. Claridy's vacation, he admitted that it could have taken place. However, Mr. Claridy never signed a leave slip requesting leave, and Mr. Skinner never signed a leave slip approving leave. Nevertheless, Mr. Claridy did not report for work on April 2nd, 3rd, 4th, or 5th, 1984, and did not contact his office during that time. The Employee Handbook, received by Mr. Claridy on April 20, 1983, clearly states that an employee must obtain the approval of his supervisor before taking leave. Neither the handbook nor the memorandum to employees of January 1982 states that prior approval must be in writing, although the language in the handbook implies that it should be. However, Mr. Claridy was fully aware of the procedure that he needed to follow in requesting leave. On two earlier occasions when Mr. Claridy had wanted time off he had submitted leave slips and received approval from his supervisor prior to his absences from work. Mr. Claridy's stated reason for not submitting a leave slip in this case in advance of his absence is neither accurate nor credible. He testified that he thought he might get called back to work during the course of his leave time due to a shortage of mechanics, and, if this occurred and he had submitted the leave slip, he would not have gotten paid for his time. 2/ However, the evidence at the hearing indicated that Mr. Claridy did not plan to be and was not in town during his absence from work, and therefore could not have been called into work. 3/ Further, Mr. Claridy stated that they might need him because they were short of help but also testified that "[w]e were caught up with all our work." Finally Mr. Claridy's return to work during a period of time when he was on authorized leave would not have adversely affected his pay or his annual leave time, and Mr. Claridy would have discovered this had he made any inquiries. Mr. Skinner did not approve Mr. Claridy's leave time nor did he inform Mr. Claridy that he could submit a leave slip after his vacation. Consequently Mr. Claridy's absence from work on April 2nd, 3rd, 4th, and 5th was unauthorized. Mr. Claridy had received the Employee Handbook and the memorandum of January 1982 which informed him that three consecutive absences without authorized leave would result in termination of employment. Mr. Claridy was properly informed by certified letter dated April 5, 1984, that having failed to report for work during the period in question and having failed to take action to notify his supervisor of the reasons for the absence he was deemed to have abandoned his position and resigned from the Career Service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Department of Transportation in deeming the petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. DONE and ENTERED this 18th day of December, 1985, in Tallahassee, Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1985.
The Issue The issues are whether Petitioner received a salary overpayment from Respondent for leave usage to which he was not entitled, as set forth in correspondence dated April 26, 2013; and, if so, whether Respondent is entitled to a repayment for the salary overpayment made to Petitioner.
Findings Of Fact Petitioner, Bruce Deterding, was an employee of the Department of Health, having served as an executive director of a medical practice board, making him a Select Exempt Service (SES) employee. Petitioner entered into a settlement agreement with the Department on December 19, 2012. The agreement required Petitioner to resign his position with the Department effective February 28, 2013, and included the following conditions: Petitioner's last day in the office would be December 18, 2012, one day preceding the signed settlement agreement; and Petitioner was required to utilize 384 hours of accrued annual leave beginning on December 19, 2012, and ending on February 27, 2013. Petitioner did not participate in the preparation of the settlement agreement, but agreed to its terms by his signature. The agreement was signed by the Division of Medical Quality Assurance Director Lucy C. Gee on behalf of the Department. From December 19, 2012, through February 28, 2013, Petitioner performed as obligated under the agreement. The Department paid Petitioner for the 384 hours of leave as required by the agreement. Petitioner relied on the Department's representations that he would be able to purchase his former military service time from the State Retirement System and retire with 30 years of state service on the resignation date set forth in the agreement. Petitioner demonstrated through a screen shot of his personnel records in the "PeopleFirst" system that he had an available balance of 428 hours of annual leave at the time he entered into the settlement agreement with the Department. The Department's employee verified through PeopleFirst that sufficient hours of leave were available prior to presenting the settlement agreement offering to pay 384 hours of leave to Petitioner. The Department notified Petitioner by a letter dated April 26, 2013, that he had received salary overpayments. Specifically, the letter stated that two payments in the amounts of $1,262.48 and $1,717.56, dated February 22, 2013, and March 8, 2013, respectively, had been erroneously made to him. Petitioner, as an SES employee, received 176 hours of annual leave on his leave accrual anniversary date of July 1 each year. In 2010, Petitioner received an annual leave accrual of 176 hours on June 18, 2010, and a second annual leave accrual on July 1, 2010. On April 26, 2013, Petitioner had a telephone conversation with Meshelle Bradford, one of the Department's payroll employees, concerning potential salary overpayments. During that conversation, Petitioner acknowledged he had received the two salary accruals totaling 352 hours on June 18 and July 1, 2010. Petitioner testified that he assumed he was the beneficiary of an "extraordinarily good hire date" which entitled him to receive leave on his former (from his previous state employment) and new leave accrual dates. The Department conducted a payroll and leave audit after the date of Petitioner's resignation and separation from the agency. The audit revealed that Petitioner had been overpaid for annual leave hours that he had accrued in 2010 by mistake. Petitioner had been paid for annual leave he used in February 2013, when he had exhausted all of his accrued leave. During the two-week pay period of February 1 through 14, 2013, Petitioner received pay for 58.5 hours of leave he did not have available, and for the two-week pay period of February 15 through 28, 2013, Petitioner received pay for 80 hours of leave he did not have available, resulting from the double accrual of leave in June and July 2010. The Department's position is that Petitioner should have been in leave without pay status for the 58.5 and 80 hours of leave for which he was paid in February 2013. The calculated overpayment for the unavailable leave is $2,980.04. The Department seeks reimbursement from Petitioner for that amount. Petitioner disputes that he owes any amount due to the fact he entered into a settlement agreement that delineated the payments to be made by the Department to him as a condition of his resignation. The Department's Agency Attendance and Leave Policy, in section VI.D.3, states: "It is the employee's responsibility to maintain an accurate accounting of their leave balances."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health requiring Petitioner to repay the overpayment of salary in the amount of $2,980.04. DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 5th day of December, 2013. COPIES FURNISHED: Mark John Henderson, Esquire Department of Health 2585 Merchants Row, Room 110J Tallahassee, Florida 32399 Bruce Milton Deterding 4841 Old Bainbridge Road Tallahassee, Florida 32303 Althea Gaines, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether the Petitioner is entitled to receive benefits pursuant to Option 3 as retirement earned by his deceased wife, Susana T. Fabian.
Findings Of Fact The Petitioner, Howard Fabian, is the spouse of the late Susana T. Fabian. Mrs. Fabian was a member of the Florida Retirement System (FRS). The Fabians were married for approximately 14 years and have two children from their union. The girls, now teenagers, reside with Mr. Fabian and depend on him for their financial support. The Respondent, DMS, is the state agency charged with the responsibility of administering the FRS. Benefits payable to FRS participants are tendered pursuant to the provisions of Chapter 121, Florida Statutes, and DMS rules. Mrs. Fabian was employed as a teacher in the Miami- Dade County Public Schools on or about December 17, 1984. As such, she was eligible to participate in the FRS. In fact, Mrs. Fabian's employer made contributions to the FRS for her benefit throughout her employment with the school system. Such contributions continued for over 13 years. It is undisputed that Mrs. Fabian was "vested" and was, therefore, entitled to receive retirement benefits from the FRS. Unfortunately, Mrs. Fabian became ill in 1997 and was unable to teach. She requested an extended sick leave for the period August 31, 1997 through May 31, 1998, which her employer granted. Mrs. Fabian returned to teaching the following year and was able to perform her duties until January 2000. At that time her medical condition worsened. Her request for unpaid leave through June 2000 was granted. Despite her best efforts to regain her health, Mrs. Fabian did not improve. Each time her employer asked whether she would return to work, forms were returned seeking an extension of leave. The employer continued to grant the extension requests and approved sick leave without pay for the period through June 14, 2002. Mr. Fabian filled out a leave form seeking leave on his wife's behalf through June 2003. By letter dated May 14, 2002, the school system denied that request. Whether or not the employer correctly calculated the time Mrs. Fabian received unpaid leave is unknown. The Petitioner asserts that had Mrs. Fabian received credit for "hardship leave and dire emergency leave" in 1997 and 2000 (for which the union contract provided), the leave request in June 2002 would or could have been granted. The record is clear that the Respondent did not have any part in the internal workings of the Miami-Dade County School District and did not have knowledge as to whether Mrs. Fabian could have been granted additional unpaid leave. The employer's decisions regarding this employee were unknown to the Respondent until the instant action. However, about the time the employer denied the last leave extension request, Mr. Fabian received a FRS application for disability retirement. The application was completed on or about June 2002. The form signed by Mrs. Fabian was out- of-date and did not have a designation of beneficiary space. Pursuant to its policy, DMS accepted the out of date form and sent Mrs. Fabian a form for designating a beneficiary. The form for designating a beneficiary listed four options: Option 1, Option 2, Option 3 and Option 4. All (Options 1-4) were clearly and unambiguously described. However, only two of the options had estimates included on the form sent to Mrs. Fabian. Estimates for Options 3 and 4 were not noted. Under Option 1 the form indicated a monthly benefit of $895.28. Option 2 indicated a monthly payment of $824.89. At that point in time DMS did not have sufficient information to calculate Options 3 and 4. To calculate Options 3 and 4 DMS must have information regarding a "Joint Annuitant." Had Mr. Fabian included information for Options 3 and 4 those amounts would have been calculated. In this case, the Respondent could not know Mrs. Fabian was married, as the initial (outdated) form did not provide that information. The Respondent could have become aware of Mrs. Fabian's marital status as a result of a telephone call from Mr. Fabian to DMS in August of 2002. At that time DMS still needed information to put Mrs. Fabian on the retirement payroll. The request for information unambiguously listed information needed for a "joint annuitant." The first notice to Mrs. Fabian, dated July 11, 2002, asked for the proof of birth for the joint annuitant. Similarly, the SECOND REQUEST-RETURN WITHIN 30 DAYS (Respondent's Ex. 12) dated September 4, 2002, indicated the following: Your name cannot be placed on the retired payroll for the reason(s) indicated below: BIRTH VERIFICATION Please see the enclosed memo outlining the acceptable means of proving your birth date. BIRTH VERIFICATION OF BENEFICIARY If you elect Option 3 or 4, we will need proof of birth for your joint annuitant. FRS-11o, OPTION SELECTION FORM The enclosed Option Selection Form is needed. If you elect option 3 or 4, we will need proof of birth for your joint annuitant. You may wait until an estimate of benefits is provided before selecting your option. FORM FST-12, BENEFICIARY DESIGNATION This form must be completed to designate a beneficiary. You must designate a beneficiary to receive any benefits due at your date of death. [Emphasis in original] Nevertheless, when the Option Selection form was submitted to DMS, Mr. Fabian, exercising a power of attorney provided by his wife, chose Option 1. Mr. Fabian claims he did not know Option 3 was available. The Option Selection form clearly and unambiguously listed all four options available to Mrs. Fabian. Mr. Fabian is an educated professional. He has taught school for the Miami-Dade County School District and has operated a real estate office for approximately 20 years. The Option Selection form signed by Mr. Fabian for himself and for his wife on September 3, 2002 (Petitioner's Exhibit. 7) required the Petitioner to complete a "Spousal Acknowledgement," recognizing that the member had chosen Option 1. The section must be completed if the FRS member is married and if Option 1 or 2 is elected. Clearly, the Petitioner knew or should have known that the form contemplated a permanent decision. In fact, the Petitioner acknowledged by signing beneath the section that stated: . . . I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited, or when my Deferred Retirement Option Program participation begins. DMS received the Beneficiary Designation Form and Option Selection forms on September 12, 2002. The completed file was referred to payroll and Mrs. Fabian then received monthly retirement benefits under Option 1 (the option selected by her husband pursuant to his power of attorney). It is undisputed the first payment was negotiated upon its receipt. Prior to cashing the first payment Mrs. Fabian could have changed her option selection. On December 24, 2002, Mrs. Fabian passed away. The Respondent then notified Mr. Fabian that the option he had selected did not provide for continuing benefits beyond the month of Mrs. Fabian's death. Additionally, Mr. Fabian was advised that he was not entitled to a refund of any contribution Mrs. Fabian paid to FRS as she had not made any. The employer paid 100 percent of the contributions to Mrs. Fabian's account. Retirement benefits under the FRS are not equivalent to life insurance. That is, the retirement payments are payable to the employee who "earned" benefits or to those who may be "joint annuitants" as defined by law. At all times material to this case, the employer paid the full amount credited to Mrs. Fabian's retirement account, approximately $84,046.51. Obviously, Mrs. Fabian sought the benefits from her account prior to her anticipated retirement date. DMS allows disability retirement under such circumstances. Therefore, Mrs. Fabian's eligibility to claim her disability retirement is not disputed. The deposition testimony of Nina Barron was admitted into evidence as Respondent's Exhibit 5. Ms. Barron reviewed the retirement options with the Petitioner prior to the time the form was submitted to FRS. Ms. Barron also calculated the amounts payable to Mrs. Fabian pursuant to each option. Ms. Barron also believes she spoke to Mrs. Fabian regarding the options. Ms. Barron mailed the calculated estimates for each option to the Petitioner. The Petitioner's allegation that he was confused regarding the options and which election would best protect his family's interests has not been deemed persuasive in light of the testimony of Ms. Barron. The witness provided an unofficial estimate to Mrs. Fabian that included all 4 options.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying the Petitioner's request. S DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services Division of Retirement 4050 Esplande Way Tallahassee, Florida 32399-1560 Richard M. Ellis, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Tallahassee, Florida 32302-0551 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether the Respondent terminated Petitioner's employment on the basis of a perceived disability, in violation of Section 760.10, Florida Statutes (2004),2 the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Seiden's Relevant Employment. Petitioner Jane Seiden is an individual who was employed by the Florida Department of Corrections at Broward Correctional Institute (hereinafter referred to as "BCI") from December 1988 until the end of March 1999 as a licensed practical nurse. From April 1, 1999, until October 7, 2001, Ms. Seiden continued to work at BCI, but was employed by a private business, Prison Health Services. On October 8, 2001, Respondent Wexford Health Sources, Inc. (hereinafter referred to as "Wexford") took over responsibility for providing medical services at BCI. Ms. Seiden became an employee of Wexford as of that date, after having received a letter dated June 20, 2001, signed by Wendy Mildner, as Wexford's Director of Human Resources/Risk Management, offering her employment with Wexford effective October 8th. Ms. Seiden accepted the offer of employment on June 25, 2001. Wexford is a provider of health care services to correctional facilities, including BCI. Throughout Ms. Seiden's employment at BCI, she received excellent work performance reviews. Wexford's Leave Policies. Wexford's policies concerning employee "Family and Medical Leave" at the time of Ms. Seiden's initial employment with Wexford were contained in the Wexford Health Sources, Inc. Employee Handbook (Respondent's Exhibit 9) (hereinafter referred to as the "Employee Handbook"). The Family and Medical Leave policy was, in relevant part, as follows: Employees who are eligible for Family and Medical Leave may take up to 12 weeks of unpaid, job protected leave. Employees are eligible if they have worked for at least one year, and for 1,256 hours over the previous 12 months. Reasons for taking unpaid leave are: . . . . ? for a serious health condition that makes the employee unable to perform the employee's job. . . . . The Wexford Employee Handbook, Revised 09/01/04 (Petitioner's Exhibit 9) (hereinafter referred to as the "Revised Employee Handbook"), established policies governing "Time Off" in Section 5. Pursuant to Policy 5.3, all employees are allowed to apply for a leave of absence for medical reasons. The period of the absence is limited, however, to 12 weeks, consistent with the Family and Medical Leave Act (hereinafter referred to as the "FMLA"), unless the employee is eligible for "income replacement benefits," for example for a short-term disability pursuant to Section 4.5, which provides the following: Wexford provides some income protection for employees who are unable to work for an extended period of time due to illness or injury through its Short-Term Disability Leave (STD) insurance program. You are eligible for STD benefits if: You Have completed one year of continuous service You work a minimum of 30 hours per week and are covered by health insurance. Eligible employees are entitled to short- term leave for up to 26 weeks in a rolling 12-month period. The rolling 12-month period is calculated by counting backwards from the date of the leave request. For example, if you request a leave in November, the rolling 12-month period is from November of the previous year to November of the current year. You will be required to provide a medical doctor's certificate to qualify for short- term disability leave. STD runs concurrent with the Family and Medical Leave Act (FMLA). Your weekly benefit is 50% of your weekly salary to a maximum of $300, whichever is less. . . . . Thus, Wexford policies, at the times relevant, allowed eligible employees to take up to 12 weeks of leave pursuant to the FMLA and 26 weeks of what Wexford termed "short-term disability" leave, the latter to run concurrently with the 12 weeks of family medical leave. Policy 5.3 describes Wexford's policy concerning "When Return to Work is Not Possible": If following 26 weeks of medical leave you remain unable to return to work your employment will be terminated. If you are able to work at a later point in time, you are welcome to reapply for employment. Your past history and work background will be taken into consideration for reemployment purposes. Consistent with this policy, Wexford does not grant extensions of the 26 week, short-term disability maximum absence. Also consistent with the policy, Wexford treats an employee as terminated at the end of the 26 week short-term disability absence if the employee does not return to work. Policies 5.3 and 5.4 provide the procedural requirements for applying for a medical leave of absence (forms to file, providing health care professional certifications of illness, etc.) and other procedures and the conditions for which FMLA leave will be granted. Of relevance to this matter, one of the conditions for which FMLA leave will be granted is: "a serious health condition that makes you unable to perform the essential functions of your job." Policy 5.4. Policy 5.7 of the Revised Employee Handbook is the established procedure for "Personal Leave of Absence - Unpaid." That Policy provides, in pertinent part" With the approval of management and the Vice President of Human Resources, you may be granted an unpaid personal leave for unusual, unavoidable situations requiring an absence from work. The unpaid personal leave is for a pre-determined period of time. Unpaid personal leaves of absence are awarded at the discretion of management and cannot be presumed or guaranteed. You must use all available PTO [personal time off] before requesting personal leave. . . . As reasonably interpreted by Wexford, the Unpaid Personal Leave of Absence policy is not used or intended for use as a method of taking off time in addition to the time off allowed by Wexford's policies governing FMLA leave and short- term disability leave. Ms. Seiden's Absence from Wexford. Ms. Seiden, who acknowledged receipt of, and responsibility for reading, the Employee Handbook at the time she was employed by Wexford, was diagnosed with kidney carcinoma in 2004. As a result of her illness she did not rest comfortably and, therefore, woke up during the night, she could not sit for long periods of time, and, although not fully developed in the record, she required hospitalization. As a result of her illness, Ms. Seiden was, due to a "serious health condition," "unable to perform the essential functions of [her] job." As a consequence, the last day that Ms. Seiden worked at BCI was April 26, 2004. Ms. Seiden was provided a Memorandum dated May 6, 2004, from Tara M. DeVenzio, Risk Management/Leave Compliance Assistant (hereinafter referred to as the "May 6th Memorandum"). The May 6th Memorandum, which Ms. Seiden read, states that Wexford had been notified that she was requesting a leave of absence and is "in need of Family Medical Leave (FML) and Short Term Disability (STD) forms." Those forms were included with the May 6th Memorandum. The May 6th Memorandum goes on to explain the procedures Ms. Seiden was required to follow in making her request for leave and the extent of leave available to her. The May 6th Memorandum also informed Ms. Seiden that, consistent with Wexford's written leave policies, the "[m]aximum amount of time allotted for Short Term Disability is 26-weeks on a rolling twelve (12) month period . . ." and that "[i]f you do not return when your leave has ended, you will be considered to have voluntarily terminated employment." Consistent with the May 6th Memorandum and the policies of the Employee Handbook, Ms. Seiden completed the forms required by Wexford to apply for FMLA and short-term disability leave to begin in April 2004, and end in October 2004. Ms. Seiden executed a Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Initial Leave Request") on May 10, 2004. (Petitioner's Exhibit 14). On the Initial Leave Request Ms. Seiden checked a box which indicated her reason for requesting leave was "Serious health condition that makes me, the employee, unable to perform the functions of my position." A space on the Initial Leave Request for "Date Leave of Absence to End" was left blank. Also provided to Wexford with the Initial Leave Request, was a Certification of Health Care Provider (hereinafter referred to as the "Certification"), as required by Wexford's leave policies. The Certification was from Nine J. Pearlmutter, M.D. Dr. Pearlmutter reported on the Certification that Ms. Seiden's "serious health condition" was a "renal mass" and that hospitalization was necessary. Dr. Pearlmutter also stated "yes at this time" in response to the following question on the Certification: If medical leave is required for the employee's absence from work because of the employee's own condition (including absences due to pregnancy or a chronic condition), is the employee unable to perform work of any kind? Ms. Seiden's Initial Leave Request was approved and she was provided a Memorandum dated May 25, 2004, from Ms. DeVenzio, memoralizing the approval. Ms. DeVenzio informed Ms. Seiden that her leave was approved "to commence on April 26, 2004." Ms. Seiden's 26-week period of leave began on April 26, 2004, ended October 25, 2004. Throughout this period, Ms. Seiden remained absent from BCI. On October 22, 2004, a Friday, Ms. Seiden telephoned Ellie Zeigler a Human Resources Generalist for Wexford, and spoke to her about the pending end of her approved leave. Ms. Seiden informed Ms. Zeigler that she wanted to request an extension of her leave, which Ms. Zeigler had not authority to grant or deny. Ms. Zeigler, who had not authority to approve or disapprove the request for an extension, told Ms. Seiden that she would send her forms, which she would have to file in order to request additional leave. Ms. Zeigler also explained to Ms. Seiden that the maximum leave available to her had been exhausted, and that, because her physician had not released her for return to work, her employment with Wexford would be considered terminated if she did not return to work the following Monday. Ms. Zeigler also told Ms. Seiden that a letter to that effect would be sent to her. Ms. Zeigler, as promised, sent Ms. Seiden a Wexford Family / Medical Leave of Absence Request. On Wednesday, October 27, 2004, two days after Ms. Zeigler's approved absence ended, Ms. Seiden executed the Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Second Leave Request") which Ms. Zeigler provided to her. Again, she checked as the "Reason for Leave" the box indicating "Serious health condition that makes me, the employee, unable to perform the functions of my position" and the "Date Leave of Absence to End" space was left blank. A second Certification of Health Care Provider form (hereinafter referred to as the "Second Certification"), executed by Dr. Pearlmutter was provided with the Second Leave Request. Dr. Pearlmutter listed, among other things, carcinoma of the kidney as Ms. Seiden's illness. While Dr. Pearlmutter indicates a "2 month" duration for one of the listed conditions, she did not indicate when Ms. Seiden would be able to return to work at the end of two months. Again, Dr. Pearlmutter answered "yes" to the question quoted in Finding of fact 18. The Second Leave Request, which was sent by certified mail on Thursday, October 28, 2004, three days after the end of Ms. Seiden's approved leave, was received by Wexford on Monday, November 1, 2004, seven days after the end of her approved leave. The Termination of Ms. Seiden's Employment. On October 25, 2004, the last day of Ms. Seiden's approved absence, Arthur Victor, Wexford's Human Resources Manager, and Ms. Zeigler exchanged e-mails concerning Ms. Seiden. In response to an inquiry from Mr. Victor, Ms. Zeigler informed Mr. Victor that October 25, 2004, was the last day of Ms. Seiden's approved leave. In response to Ms. Zeigler's information, Mr. Victor wrote "[t]hen there is no extension. Six months is up 10/30/04. You need to talk to Ron Miller re. termination." This decision was consistent with Wexford’s written policies and was based upon Ms. Seiden's failure to return to work on October 25, 2004. Given Mr. Victor's statement that "there is no extension," it is found that Mr. Victor had been informed that Ms. Seiden intended to request an extension of her approved absence. It is also found that Wexford was aware of the reason for Ms. Seiden's absence: kidney cancer. Finally, it is found that, by terminating Ms. Seiden's employment, Wexford denied the requested extension. After receiving Mr. Victor's e-mail indicating that Ms. Seiden would be terminated, Ms. Zeigler wrote to Ron Miler and Judy Choate, Ms. Seiden's supervisor, and informed them of the following: I received a call from Jane last friday [sic] requesting an extension for her fmla. Jane's 26 weeks for her std/fmla has expired as of today (10/25/04). I just spoke with Jane and inform [sic] her that her Dr. has not released her for full duty and that she was exhausted all of her authorized fmla/std leave and that Wexford considers her to have resigned from her position. I told Jane that Judy will be sending her a letter confirming her of the above. To Ms. Choate, Ms. Zeigler continued: The letter should be sent from you. Attached you will find a copy of the letter that Art has drafted for your [sic] to send to Jane regarding her std/fmla. . . . . Also, please complete the "Termination Processing From" and forward it to the Pittsburgh office so I can term her out of the system. The draft termination letter provided to Ms. Choate and dated October 26, 2004, was signed by Ms. Choate and sent to Ms. Seiden. The letter (hereinafter referred to as the "Termination Letter") states, in part: As you are aware, you have exhausted all authorized Family and Medical/Short Term Disability leave. You were to return to work on October 25, 2004. Since you have not returned, Wexford Health Sources, Inc. considers you to have resigned your position as a Licensed practical [sic] Nurse, effective October 25, 2004. If you are in disagreement with this letter, please contact me immediately but no later than 4:00pm, on 10/28/02004 at If it is determined that there were extenuating circumstances for the absence and failure to notify, you may be considered for reinstatement. . . . . Ms. Seiden received the Termination Letter on November 3, 2004. She did not contact Ms. Choate about the matter. Although she had been informed on October 22, 2004, that she would be terminated by Wexford during her telephone conversation with Ms. Zeigler, November 3, 2004, constitutes the first official notice of Wexford's adverse action which Ms. Seiden received. The effective date of Ms. Seiden's termination was October 25, 2004. The Reason for Ms. Seiden's Termination. Ms. Seiden was terminated because, consistent with written Wexford policies which Ms. Seiden had been informed of on more than one occasion, Ms. Seiden had exhausted the maximum family medical leave and short-term disability leave she was authorized to take. Having used the maximum authorized medical leave, Ms. Seiden was still unable to perform any of the functions and duties required of her position. Due to her illness, she was simply unable to perform any work at all during the period relevant to this case, a fact Wexford was aware of. While she testified at hearing that she had been told by her physician that she would be able to return to work in January 2005, that testimony constitutes hearsay upon which a finding of fact will not be made. More significantly, Wexford was never informed by Ms. Seiden or her physician that she would be able to work. Wexford's policies gave Ms. Seiden leave in excess of the 12 weeks required by the FMLA. Wexford was not required to do more. Ms. Seiden's Claim of Discrimination. Ms. Seiden filed her Employment Complaint of Discrimination with the FCHR on November 30, 2005, or 392 days after being informed that she had been terminated and 401 days after her actual October 25, 2004, termination date. After a Determination: No Cause was issued by the FCHR, Ms. Seiden filed a Petition for Relief in which she alleged that Wexford had "violated the Florida Civil Rights Act of 1992 by terminating [her] based upon a perceived disability." No allegation of failure to provide an accommodation for her disability was alleged in the Petition. Summary. The evidence proved that Ms. Seiden failed to file her complaint of discrimination with the FCHR within 365 days of the discriminatory act. She offered no explanation as to why she did not do so. Ms. Seiden failed to establish a prima facie case of unlawful employment discrimination. While she did prove that she suffered from kidney cancer and that, as a result of her illness she was unable to perform the duties of her position, which may constitute a disability, she ultimately failed to prove that she was a "qualified individual" with or without an accommodation. From April 2004 through October 22, 2004, when she orally informed Wexford that she desired an extension of leave, her termination from employment on October 25, 2004, and on November 1, 2004, when her formal request for an extension of leave was received by Wexford, Ms. Seiden, along with her physician, reported to Wexford that she was unable to carry out her employment duties. Ms. Seiden also failed to prove that she was terminated because of her illness, on the basis of a perceived disability. Finally, Wexford proved a non-pretextual, non- discriminatory reason for terminating Ms. Seiden's employment.
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 filed by Jane Seiden. DONE AND ENTERED this 18th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2007.
Findings Of Fact The Petitioner, Alfred Greenberg, has held the position of a veterinary aide since approximately November, 1967. During October 1974, he was converted from OPS status to a regular career service employee subject to the normal six month probationary period. By letter dated June 24, 1976, from J. Patrick McCann, Division Director, Petitioner was advised that based on "action by the 1976 legislature, we most regretfully inform you that it will be necessary to abolish your position effective the close of business, June 30, 1976. In lieu of two weeks notice, you will receive two weeks termination pay." (See Respondent's Composite Exhibit Number 1). Within a few days, the Petitioner was converted back to an OPS position receiving the same hourly pay and was advised that he would be offered any vacancy which occurred within the department to which he qualified within the following 12 month period. Petitioner, through his attorney, timely appealed the Respondent's actions essentially contesting his conversion from the career service status to the OPS status and thereby losing social security benefits, retirement benefits and the accrual of vacation and sick leave. He further complained about the manner in which he was served his layoff notice. Specifically, he complained that his letter was hand delivered whereas personnel rules and regulations require that layoff notices etc. be sent by certified mail. In this regard, evidence reveals that by letter dated August 3, 1976, by certified mail, return receipt requested, Petitioner was advised that he was then being provided notice in accordance with the requirement in the department's personnel rules and regulations. Pursuant to emergency rules governing the layoff of career service employees, 22AER76-1, the Petitioner was advised that his position was abolished pursuant to action taken by the 1976 legislature. Evidence adduced during the course of the hearing reveals that the Petitioner's layoff was effected via the procedures as outlined in the above referred emergency rule and he was immediately converted to an OPS position, a position he now holds, at the same rate of pay. Evidence clearly reveals that Petitioner's layoff was effected pursuant to and authorized by the foregoing emergency rule. In view thereof, and in the absence of any evidence which would provide basis for a contrary finding, the action of the Department in effecting the Petitioner's layoff was proper and I shall accordingly recommend that such action be sustained. It is therefore recommended that the action of the Division of Pari-Mutuel Wagering, in effecting the layoff of the Petitioner, Alfred Greenberg, pursuant to emergency rule 22AER76-1, as published in the Florida Administrative Weekly on June 11, 1976, and adopted by the Administration Commission that same date, be sustained. RECOMMENDED this 28th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 James W. Pritchard, Esquire 1038 Alfred I. DuPont Building 169 East Flagler Street Miami, Florida 33131 Mrs. Dorothy B. Roberts Room 443, Carlton Building Tallahassee, Florida 32304
The Issue Whether Petitioner was overpaid for the pay period ending July 5, 2001, warrant date July 13, 2001, for 40 hours, equaling $378.74.
Findings Of Fact Petitioner was employed by Respondent, an agency of the State of Florida, as a Senior Juvenile Detention Officer during the pay period of June 22, 2001 through July 5, 2001. Prior to June 22, 2001, Petitioner exhausted her accrued sick leave. During the referenced pay period, Petitioner claimed 40 hours of sick leave relying on leave that a fellow employee, Marc Gulley, attempted to donate to her. On June 24, 2001, Marc Gulley submitted an Interagency Sick Leave Transfer Request to Donate form to Respondent. On June 27, 2001, Petitioner submitted a Sick Leave Transfer Request to Use form to Respondent. Petitioner was paid, by salary warrant on July 13, 2001, for 40 hours of credited sick leave for the pay period of June 22, 2001 through July 5, 2001. On August 13, 2001, Respondent notified Marc Gulley that his request to donate sick leave to Petitioner was denied because he did not possess the requisite amount remaining of sick leave. On August 15, 2001, Respondent notified Petitioner of the salary overpayment of $378.74 and requested repayment. Respondent presented a salary refund calculation showing the amount Petitioner was paid, the amount she should have been paid when the sick leave transfer was denied, and the amount of the refund she owed to Respondent. Petitioner owed Respondent $378.74 as a result of an overpayment which occurred due to the improper crediting of 40 hours of sick leave transferred from another employee, Marc Gulley. Petitioner left the employ of Respondent on August 27, 2001; on August 24, 2001, Respondent appropriately withheld $378.74 from a warrant issued to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby Recommended that the determination of Respondent, Department of Juvenile Justice, that Petitioner, Janet Bing, was overpaid in the amount of $378.74 be upheld, that withholding $378.74 from Petitioner's pay was appropriate, that Petitioner's claim be denied, and the file be closed. DONE AND ENTERED this 26th day of October, 2001, 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 26th day of October, 2001. COPIES FURNISHED: Janet Bing 719 Waxwing Court Kissimmee, Florida 34759 Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Petitioner should be permitted to transfer credit of certain hours of accrued sick leave from Petitioner's former place of employment, P.K. Yonge School, to Petitioner's current leave balance with Respondent, the Alachua County School Board (Board).
Findings Of Fact Petitioner, Tom E. Massey, began his employment with Respondent at the start of the 1983-84 school year. He had been previously employed at the University of Florida's P.K. Yonge Laboratory School since September 1, 1967. During the 1983-84 and 1984-85 school years, Petitioner was technically on a leave of absence from the University of Florida. At the conclusion of that two year period, Petitioner determined that he would make his employment relationship with Respondent permanent and formally terminate his employment with the University of Florida. At the time of separation from employment with the University of Florida, Petitioner had accrued a balance in that employment of 336 hours of unused sick leave prior to October 1, 1973, and 686.4 hours of sick leave after that date. Petitioner learned from Respondent's personnel department that existing policy did not provide for transfer of such leave to the Alachua County School Board employment. Transfers of existing leave balances were limited to other school boards in the state and educational personnel in residential care facilities of the Department of Health and Rehabilitative Services. Consequently, Petitioner elected, on September 6, 1985, to be paid by the University of Florida for unused sick leave under prevailing personnel rules at his existing salary rate for one-eighth of the hours accrued prior to October 1, 1973, and one-fourth of the hours accrued on or after October 1, 1973. As a result of his decision to sell his sick leave, Petitioner was paid approximately $2,419 by the University of Florida. At the present, Petitioner has no unused sick leave hours accrued at the University. As a result of the legislative enactment in 1990 of the "Sidney Martin Developmental Research School Act" (Section 2 of 90-49, Laws of Florida), codified at Section 228.053, Florida Statutes, university sponsored developmental schools were established as a category of public schools funded under the Florida Education Finance Program (FEFP), as opposed to the previous practice of funding such "laboratory schools" through the budget of the State University System. On June 4, 1991, Respondent amended its policy to permit transfer of sick leave from other public schools in Florida funded through the FEFP. Pursuant to that policy, Respondent also permitted certain existing employees of the Alachua County School Board to transfer unpaid leave balances resulting from prior employment with the University of Florida. Leonard D. Jackson was employed at P.K. Yonge School from August 1, 1971, until November 23, 1973, when he left that employment with the University of Florida to commence employment with Respondent. Jackson had accrued 18 days and seven hours of sick leave (151 hours) during that period, but was ineligible for leave payment since the length of his employment with the University was less than 10 years. Following Respondent's June 4, 1991, policy change, Leonard D. Jackson transferred the 151 hours of accrued sick leave from the University of Florida to his then current employer, the Alachua County School Board. Upon his retirement, Jackson received payment for the leave at a rate of 110 percent of his final salary rate. Totsye J. Connor, employed at the University of Florida from September 1, 1968, until May 20, 1982, elected not to be paid for accrued sick leave when she left that employment for her subsequent employment with Respondent. Following Respondent's policy change in 1991, she then transferred 59 hours of accrued sick leave to her employment with Respondent and was paid for that leave upon her retirement. Petitioner intends to retire from employment at the conclusion of the present school term in June of 1996. Petitioner will receive compensation at that time for the leave balance accrued by him in Respondent's employment. Petitioner argues that he has been treated unfairly and should now be permitted to transfer and receive compensation for all or a portion of his previous unused sick leave balance accrued at the University of Florida's P.K. Yonge School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's request for transfer and subsequent compensation for sick leave from the University of Florida's P.K. Yonge School. DONE and ENTERED this 11th day of June, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1996. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Petitioner's handwritten proposed findings were unnumbered and basically restated his argument that he has been treated unfairly by what he views as a discriminatory school board rule. The findings of fact, as set forth above, address, to the extent possible, facts proposed by Petitioner. Respondent's Proposed Findings 1.-8. Accepted. Rejected, unnecessary to result. Accepted. COPIES FURNISHED: Tom E. Massey c/o Susan C. Massey 5160 Northeast Elliott Circle Corvallis, Oregon 97330 Thomas L. Wittmer, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, Esquire Department of Education The Capitol Tallahassee, Florida 32399-0400
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 the Petitioner received a salary overpayment from the Respondent for leave usage to which she was not entitled, as set forth in amended correspondence dated October 2, 2009, and, if so, the amount of any overpayment.
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: Ms. Anderson was employed by the Department as a full- time Career Service employee until her separation on August 11, 2009. She had one year and four months' service with the State of Florida. As an employee of the Department, Ms. Anderson was paid biweekly. Based on her years of service, Ms. Anderson accrued four hours of annual leave and four hours of sick leave each biweekly pay period. Ms. Anderson used the People First System to complete her timesheets, request approval of leave, and review her leave balances. At issue is the amount of annual and sick leave used by Ms. Anderson during the pay period beginning February 6, 2009 and ending February 19, 2009. Ms. Anderson entered her time in the computerized People First timesheet as follows: February 6, 2009 8 hours' worked February 9, 2009 8 hours' sick leave February 10, 2009 8 hours' sick leave February 11, 2009 3.25 hours' sick leave 4.75 hours' annual leave February 12, 2009 8 hours' personal holiday February 13, 2009 8 hours' annual leave February 16, 2009 7.25 hours' annual leave February 17, 2009 8 hours' worked February 18, 2009 8.75 hours' worked February 19, 2009 4 hours' sick leave 4 hours' annual leave The Pay Period Overview in the People First System for the pertinent time period reflected the following: Beginning balance 2/06/09: 0 hours' annual leave 0 hours' sick leave 0 hours' personal holiday Accrual 2/19/09: 4 hours' annual leave 4 hours' sick leave 0 hours' personal holiday Used N/A : (24.00) hours' annual leave (23.25) hours' sick leave 0 hours' personal holiday Ending Balance 2/19/09: 0 hours' annual leave 0 hours' sick leave 0 hours' personal holiday The Department's Policies and Procedures for Attendance and Leave provides in pertinent part: III. Standards and Procedures * * * Annual Leave Method of Earning Annual Leave * * * Bureau of Personnel 1. Annual leave earned during any period shall be credited to the employee on the last day of that pay period or, in the case of separation, on the last day the employee is on the payroll. * * * Use of Earned Annual Leave Employee 1. Use of annual leave shall not be authorized prior to the time it is earned and credited and shall only be used with the prior approval of the proper authority. * * * Sick Leave Method of Earning Sick Leave * * * Employee * * * 4. Sick leave earned during any pay period shall be credited to the employee on the last day of that pay period, or in the case of separation, on the last day the employee is on the payroll. * * * Use of Earned Sick Leave Employee 1. Use of sick leave shall not be authorized prior to the time it is earned and credited to the employee and shall only be used with the approval of the proper authority. The Department keeps an official record of an employee's leave balances and accruals for each pay period, and it conducts audits of an employee's leave upon separation. The Department performed an audit of Ms. Anderson's leave and created an Employee Leave Record setting out annual and sick leave earned and used by Ms. Anderson up to her date of separation in August 2009. The audit revealed that Ms. Anderson had 20 hours of annual leave and 19.25 of sick leave available as of January 6, 2009, and that she accrued 4 hours of annual leave and 4 hours of sick leave on February 19, 2009, which could be used beginning February 20, 2009. As shown on the People's First timesheet prepared by Ms. Anderson and set out above, Ms. Anderson used 24 hours of annual leave and 23.25 hours of sick leave during the pay period beginning February 6, 2009, and ending February 19, 2009. Ms. Anderson, therefore, used four hours of annual leave and four hours of sick leave to which she was not entitled during the pay period extending from February 6, 2009, to February 19, 2009, and she was paid for these hours in the salary warrant issued February 27, 2009. In calculating the amount of the salary overpayment to Ms. Anderson, the Department made allowance for the one hour's annual leave balance Ms. Anderson had when she separated from the Department. The Department, therefore, calculated the salary overpayment based on seven non-compensable hours, and the balance owed by Ms. Anderson to the Department for the salary overpayment is $66.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order requiring Lillian Anderson to remit to the Department of Juvenile Justice the amount of $66.65. DONE AND ENTERED this 19th day of February, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 19th day of February, 2010. COPIES FURNISHED: Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 Lillian Anderson 3617 Carambola Circle North Coconut, Florida 33066 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
