Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black female, was hired by Respondent on May 2, 1978. Petitioner was employed as a psychiatric aide until June 12, 1981. From June 13, 1981 until Petitioner's dismissal by Respondent on October 17, 1985, her primary duties consisted of working with severely mentally ill patients as a Human Services Worker II at Northeast Florida State Hospital in Macclenny, Florida. At all times material to this proceeding, Petitioner was a permanent employee of Respondent. Petitioner's immediate supervisor at the time of the incident was Dan Gibbs, a black male. On September 2, 1985, Petitioner volunteered to work a consecutive eight (8) hour shift from 11:00 p.m. on September 2, 1985 until 7:00 a.m. on September 3, 1925. Petitioner's primary duty was to observe A. G., a suicidal patient, on a one-on-one procedure throughout the entire shift. The one-on-one procedure requires the observer to remain within arms reach of the assigned patient at all times without interruption. At approximately 2:30 a.m. on September 3, 1985, Emma Jordan, a white female registered nurse and Geri Knowles, a white female security officer, found the Petitioner asleep in the T.V. Room of Ward Nine (9) with her feet propped up on a chair, a pillow behind her back and a cover over her. Petitioner's co- worker, Freddy Jones, a probationary employee, was also found sleeping and was subsequently terminated by Respondent for sleeping on the job. Two patients, including A. G., were also asleep. A. G., the patient assigned to Petitioner for a one-on-one procedure, was no less than ten (10) feet from Petitioner. Ten (10) feet is more than arms length. There was sufficient light from the nurses' station and the television for Jordan and Knowles to determine that Petitioner was asleep. Jordan and Knowles observed Petitioner sleeping for about two (2) minutes before she was awakened by Jordan. After Petitioner was awakened, Jordan, whose duties included caring for patients on Ward Nine (9), questioned Petitioner about who was responsible for carrying out the one-on- one procedure and was informed by Petitioner that both she and Freddy Jones took turns. When Jordan attempted to explain the safety violation, Petitioner responded with "you ain't my supervisor, mother fucker." From this point, the exchange between Petitioner and Jordan escalated with Petitioner using more obscenities and making actual physical contact with Jordan. Additionally, Petitioner encouraged Jordan to "Fight like a woman, mother fucker." Both Dan Gibbs and Freddy Jones had to intercede and physically restrain Petitioner on two (2) occasions. Petitioner had previously been suspended for three (3) days in August, 1982 for sleeping while on duty. Prior to this incident, Petitioner was aware of Respondent's personnel policy concerning disciplinary action for sleeping on the job. Respondent's disciplinary rule provides for a "written reprimand or up to thirty days suspension or dismissal" for sleeping on the job. With each subsequent occurrence of the same violation, the rule imposes a more severe discipline. A predetermination hearing was held by Respondent on September 26, 1985 and Petitioner was subsequently discharged by Respondent on October 17, 1985 for sleeping on the job and malicious use of profane language. The evidence in the record does not reflect a similar instance where an employee (black or white) had been accused and disciplined for sleeping on the job while observing a patient on a one-on-one basis and exhibiting conduct such as the Petitioner exhibited in this instance. Respondent's hospital had, prior to September 3, 1985, suspended both black and white employees for sleeping on duty and subsequent to this incident dismissed a white male employee for sleeping on duty while assigned to a one-on- one supervision of a patient. There was no evidence to support Petitioner's contention that her termination was "retaliation" by Respondent because she had successfully challenged an earlier termination by Respondent for abandonment of position. The evidence clearly established that Respondent reinstated Petitioner after receiving additional information from Petitioner without the matter going to hearing. The evidence clearly establishes that Petitioner was discharged because she was found sleeping on the job while assigned to a suicidal patient on a one-on-one basis and for use of malicious profane language. The evidence clearly establishes that Respondent's actions were not inconsistent with previous disciplinary actions taken against other employees, both black and white, with similar offenses. There was insufficient evidence to show that Respondent's actions taken in discharging Petitioner were motivated by impermissible racial consideration.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Joann Postell has failed to establish that she was discharged due to her race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 12th day of August, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 12th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2391 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.(a)(b) That Petitioner was employed by Respondent and terminated for sleeping on the job is adopted in Findings of Fact 1 and 13. The balance of the introductory sentence is rejected as not being a finding of fact but that Petitioner's argument that her dismissal was discriminatory. Rejected as not stating a fact but only why Petitioner denied being asleep. Adopted in substance in Finding of Fact 15. 2. Rejected as being argument rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. 5. Adopted in Finding of Facts 4 and 6. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 9. 8. Adopted in Finding of Fact 3. 9. Adopted in Finding of Fact 14. 10. Adopted in Finding of Fact 15. 11. Adopted in Finding of Fact 16. 12. Adopted in Finding of Fact 17. 13. Adopted in Finding of Fact 1a. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 David A. West, Esquire Legal Counsel Northeast Florida State Hospital Macclenny, Florida 32063 Carl G. Swanson, Esquire 335 East Bay Street Jacksonville, Florida 32202 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Petitioner, Henry L. Curry, was employed by Respondent, Department of Health and Rehabilitative Services, from October 26, 1970 to March 3, 1988. Petitioner was employed at Florida State Hospital, Chattahoochee, as a Human Services Worker I, Forensics, Unit 20, during the winter of 1988. The position was part of the Career Service System in which the Petitioner had attained "permanent" status. On February 1, 1988, Petitioner telephoned a person named Grady James, another employee at Florida State Hospital. (R-1) Petitioner informed Mr. James that, due to illness, Petitioner was not able to work and would bring a "sick slip" when he was able to return to work. Petitioner had no further contact with Respondent until March 28, 1988, when Petitioner's letter, dated March 24, 1988, was received by Florida State Hospital. (P-1) In the letter, Petitioner stated that he was "an inpatient at the VA Medical Center" and that "a letter of verification" of his hospitalization was forthcoming. On March 30, 1988, Florida State Hospital received a letter from the Atlanta Veterans Administration Medical Center's Alcoholism and Drug Dependence Treatment Unit in Decatur, Georgia. The letter, dated March 28, 1988, stated that Petitioner had been hospitalized March 16 - 28, 1988, in said unit. (P-2) There is limited information indicating Petitioner's physical location or functional ability during the period of time between February 1, 1988, when he contacted Mr. James, and March 16, 1988, when he was hospitalized. Petitioner testified that he was not in his "right mind", that he "was possessed", "drugged out", and "couldn't cope". Petitioner slept "in the car, in the crack houses and everywhere". (Testimony of Petitioner) Petitioner was seen once during that time by his father in Quincy, Florida, (Testimony of Perman Curry) and apparently was hospitalized for unexplained reasons in "Montgomery" for some period (Testimony of Petitioner) While Petitioner states that he did not intend to resign from his position, no contact was made with his employer from February 1, 1988 to March 28, 1988, a period of 56 days. Prior to February 1, 1988, Petitioner had been counseled on several occasions, and his attendance had been closely monitored, due to unscheduled absences. (R-1) On February 9, 1988, Dorothy N. Stinson, the supervisor of the unit in which Petitioner worked, sent by certified mail, appropriately addressed, a letter to Petitioner noting the lack of communication from Petitioner and stating that, unless medical certification for the unauthorized absence was provided within three days of receipt of the letter, Petitioner would be considered to have abandoned his position and resigned from employment. The letter was returned as "unclaimed" by the postal service on February 25, 1988, after two unsuccessful attempts to effect delivery. (R-3) On March 4, 1988, Faye H. Alcorn, Deputy Hospital Administrator, sent by certified mail, appropriately addressed, a letter (dated March 3, 1988) to Petitioner which stated that due to his absence without authorized leave from February 2 - March 2, 1988, during which time there had been no contact with Petitioner, he was deemed to have abandoned his position and resigned from the state's career service system pursuant to rules related to separation from employment resulting from abandonment of position. The letter was returned as "unclaimed" by the postal service on March 20, 1988, after two unsuccessful attempts to effect delivery. (R-2) In or around December, 1987, Ms. Stinson became aware that Petitioner had a substance abuse problem. Ms. Stinson testified that it is possible to take "leave without pay" for a period of up to one year and that such leave could possibly be granted to an employee who is ill due to a drug and alcohol addiction. A person seeking to take such leave would either submit a written letter of request or would submit medical certification indicating that the employee was unable to work. Petitioner did not request to be placed on "leave without pay" status. The "leave without pay" status assigned to Petitioner during that period was assigned for administrative purposes and did not indicate that the leave had been authorized or approved. The medical certification submitted by Petitioner is for the period of March 16 - 28, 1988. No medical certification was submitted for the period of February 1 - March 16, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued concluding that the Petitioner abandoned his position and resigned from the Career Service. DONE and ENTERED this 2nd day of August, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of August, 1988. APPENDIX The following constitute rulings on the proposed findings of fact submitted by the panties to this case. Petitioner Accepted. Accepted, however, letter indicated that continued absence would constitute abandonment. Accepted, insofar as the absence from 2/2/88 to 3/2/88, however, Petitioner did not notify Respondent of his situation until 3/28/88, (or 26 days following termination). Accepted. Accepted. Rejected, irrelevant. Accepted, however, such leave must receive prior approval. Accepted. Accepted. Accepted. Rejected, irrelevant. Rejected. If Petitioner was unable, as counsel asserts, to form the intent to resign from his position he was likewise unable to form the intent to return. Respondent Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected, unnecessary. COPIES FURNISHED: Kathy R. Newman, Esquire Legal Services of North Florida, Inc. 211 East Jefferson Street Quincy, Florida 32351 Dennis X. Crowley, Esquire Florida State Hospital Administration Building Chattahoochee, Florida 32324 Adis Vila, Secretary 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
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations. Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Petition was not timely filed.
Findings Of Fact On December 15, 1994, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a Charge of Discrimination with FCHR on November 2, 1993, charging an unlawful employment practice by Respondent in connection with her lay off on October 29, 1992. On October 21, 1994, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was mailed to Petitioner and Respondent on October 21, 1994 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial to seek legal counsel prior to filing the petition. If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Counsel for Petitioner, George T. Paulk II, received the Notice of Determination on behalf of Petitioner and prepared the petition to be "filed" with the FCHR. On November 25, 1994, 35 days after the Notice was mailed, Counsel for Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR. The petition was sent by regular U.S. Mail. The Petition for Relief was filed with the FCHR on November 29, 1994, 39 days after the Notice of Determination was issued. The FCHR transmitted the pleadings to the Division of Administrative Hearings for further proceedings. At the same time of the transmittal to Division of Administrative Hearings, FCHR issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. Respondent timely filed its answer with affirmative defenses, including the first affirmative defense that "Petitioner failed to file her petition within the time allowed by law." Respondent also filed a separate Notice to Dismiss raising the same issue. The Petition for Relief was deposited in the mail on Friday, November 25, 1994, the day after Thanksgiving which is an official state holiday. The next business day was Monday, November 28, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in Division of Administrative Hearings' Case No. 94-6976 and FCHR Case No. 94-7490, for failure to timely file the Petition. DONE AND ENTERED this 29th day of March, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 29th day of March, 1995.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the Me™ sy of yp Encher_. 2013, in Tallahassee, Florida. ; Le . Ll. 4 lizabeth Dudek{Secret: Agency for Health Care Administration
