Findings Of Fact On or about May 14, 1985, Petitioner filed a Complaint of Discrimination against Respondent alleging discrimination based on his handicap. Petitioner was employed as medical director and physician with Respondent from July, 1984 until November, 1984 when he was discharged. He was denied reinstatement in December, 1984 and April, 1985. It is unrebutted that the sole basis for Petitioner's discharge was the fact that he has had a laryngectomy. It is readily apparent that Petitioner has had a laryngectomy, but also that he is capable of communicating with others by means of a voice prosthesis which is not visible to the public. Petitioner indicates, and there is no evidence to the contrary, that he is capable of performing all duties of medical director and physician, and that he has worked at other clinics since his discharge. Notice of the hearing was sent to Respondent at its business address, but said notice was returned by the Post Office with the notation, "Moved Left No Address". It appears that Respondent has closed its clinic. Notice was then sent to Respondent's President, Dr. Rudolph Bono, and said notice has not been returned by the Post Office.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued finding that Respondent has unlawfully discriminated against Petitioner based upon his handicap. DONE AND ENTERED this 18th day of December, 1986 in Tallahassee, Florida. DONALD D. CONN 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, 1986. COPIES FURNISHED: Wayne M. Carroll, Esquire Post Office Box 496 Lake Butler, Florida 32054 Dr. Rudolph Bono Harborage Condominiums 1631 Gulf Boulevard Clearwater, Florida 33517 Miles A. Lance, Esquire Post Office Box 4748 Clearwater, Florida 33518 Ronald M. McElrath, Coordinator Office of Community Relation Post Office Box 4748 Clearwater, Florida 33518
The Issue The issue in this case is whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.
Findings Of Fact By letter dated October 13, 2016, Respondent issued its notice of proposed agency action by which it informed Petitioner that her request for exemption from disqualification was denied. A timely Petition for Formal Administrative Hearing involving disputed issues of material fact was filed on behalf of Petitioner. After filing the hearing request, Petitioner responded to the Initial Order, and the final hearing was scheduled on a date provided by Petitioner. Thereafter, Petitioner failed to comply with the Order of Pre-hearing Instructions and failed to appear at the final hearing. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner proved her rehabilitation from the disqualifying offense such that Petitioner would not present a danger to children or developmentally disabled people served in programs regulated by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner, Kyanna Raquel Dixon’s, request for an exemption from disqualification. DONE AND ENTERED this 27th day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 27th day of January, 2017. COPIES FURNISHED: Kyanna R. Dixon Post Office Box 454 Quincy, Florida 37353 Kyanna Dixon 1720 Bordeaux Boulevard Tallahassee, Florida 32303 Jeannette L. Estes, Esquire Agency for Persons with Disabilities Suite 422 200 North Kentucky Avenue Lakeland, Florida 33801 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue in this case is whether Petitioner has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons; and, if so, whether Respondent’s intended agency action to deny her request for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Respondent is the state agency responsible for regulating employment of persons who provide direct service to APD clients. Petitioner seeks an exemption from disqualification from employment in order to work with APD clients. In a letter dated April 11, 2017, Respondent issued its notice of proposed agency action which informed Petitioner that her request for exemption from disqualification was denied. Petitioner filed a timely Petition for Formal Administrative Hearing involving disputed issues of material fact. After filing the hearing request, Petitioner joined in the response to the Initial Order, and the final hearing was scheduled on a date provided by Petitioner. Thereafter, Petitioner failed to comply with the Order of Pre-hearing Instructions and failed to appear at the final hearing that Petitioner requested. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner proved her rehabilitation from the disqualifying offense such that Petitioner would not present a danger to children or developmentally-disabled persons served in programs regulated by Respondent. Petitioner has abandoned her hearing request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner, Carla Johnson-Lane’s, request for an exemption from disqualification. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 18th day of August, 2017.
Findings Of Fact Having listened to the testimony and considered the exhibits presented in this cause, it is found as follows: Since 1964, Petitioner has been employed by the State of Florida, Department of Transportation. His duties consist of operating a tractor pulling a rotary mower which cuts grass on the rights of way of primary and interstate highways. Exhibits 2, 3 and 4. Prior to 1970, Petitioner was a member of the State and County Officers and Employees Retirement System, under which he was not covered for in line of duty disability retirement benefits. In 1967, while employed by the State of Florida, Department of Transportation, Petitioner injured his lower back and left leg when a tractor fell off the back of a lowboy trailer. Exhibits 1, 3, 4 and 11. In 1970, Petitioner transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System (FRS). Exhibit 17. During his regular working hours in March of 1974, Petitioner again injured his back while moving road material. Exhibits 1, 3, 4, 8 and 13. On October 31, 1974, Petitioner applied for disability retirement on the basis of the March of 1974 injury. Exhibit 1. Mr. W. W. Ray, Engineer II with the Department of Transportation, completed a "Statement of Disability by Employer" form on October 21, 1974, answering affirmatively the question of whether petitioner was, prior to his alleged disability, able to perform all of the duties of his position fully and completely. It was further stated by Mr. Ray that petitioner "has been very good employee during his employment. Had worked up to lead worker in his mowing crew." Mr. Ray concluded that "most any job which we have would require a certain amount of working with hand tools and stooping over or standing for long periods of time which could be painful for persons with back problems." Exhibit 2. Two Florida licensed physicians submitted Florida Retirement System Physician's Reports. Form FR-13b. Dr. W. J. Newcomb stated that Petitioner "had strained his back and aggravated the degenerative arthritic condition that existed in his back." He had no "definite indication of proof that the original injury of 1966 [sic] or the subsequent injury of 1974 caused his degenerated condition." Dr. Newcomb felt "it was just probably aggravated by the related accidents." It was opined that Petitioner could do the duties of his occupation in a protected manner, but he would have chronic difficulty with his back. The performance of Petitioner's duties would produce pain because of his current illness or injury. Exhibit 3. Dr. Howard T. Currie opined that Petitioner was unable to, perform any of the duties of his occupation because of his current illness or injury. Exhibit 4. On June 5, 1975, a letter was sent to Petitioner by Administrator, Robert L. Kennedy, Jr., under the signature of David W. Ragsdale, Supervisor, Disability Determination Unit. This letter notified Petitioner that the State Retirement Director was unable to approve his application for in line of duty disability retirement benefits "[s]ince your injury is an aggravation of a preexisting condition and since your initial injury occurred prior to the Florida Retirement System..." However, it was determined that Petitioner did meet the requirements for regular disability retirement as described in F.S. 121.091(4)(b) Exhibit A. In accordance with F.S. Chapter 120, the Petitioner filed a petition requesting a hearing and the Respondent requested the Division of Administrative Hearings to conduct the hearing.
Recommendation Based upon the above findings of fact and conclusions of law, it is my recommendation that Petitioner be awarded the greater benefits allowable for a member totally and permanently disabled in line of duty. Respectfully submitted and entered this 9th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George Ralph Miller, Esquire P.0. Box 112 DeFuniak Springs, Florida 32433 L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304
The Issue Whether or not an unlawful employment practice pursuant to the Human Rights Act of 1977, Section 760.10 F.S. (1989) has occurred.
Findings Of Fact On the Thursday and Friday preceding formal hearing the undersigned attempted to contact Petitioner to determine if he was prepared for formal hearing on March 4, 1991. His phone was in working order, but no one answered at any of several times the call was placed. At the date and time of formal hearing, Petitioner did not appear, although the hearing was convened after waiting five minutes. A recess was taken for 15 minutes to permit Petitioner additional time to arrive at the place of formal hearing in the event that he had been unavoidably delayed. After waiting those 15 minutes, the undersigned searched the waiting area outside the hearing room for any black male, and none was found. The undersigned also called her DOAH office to determine if Petitioner had attempted to telephone there with any excuse for his nonappearance; the secretary to the undersigned reported that he had not telephoned. At 25 minutes after the appointed hour for commencement of the hearing, Respondent moved for default and/or judgment on the pleadings, and the undersigned indicated that the Recommended Order would reflect, to the same effect, that Petitioner's nonappearance would be deemed withdrawal of his petition.
Recommendation Accordingly, upon 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 herein. DONE and ENTERED this 13th day of March, 1991, at Tallahassee, Florida. ELLA JANE P. 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 13th day of March, 1991. COPIES FURNISHED: J. Robert Duggan, Esquire Howell, Taylor & Duggan, P.A. Post Office Box 490208 Leesburg, FL 34749-0208 Willie Ray Wright 2311 Griffin Road, Apt. A-4 Leesburg, FL 32748 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Tallahassee, FL 32399-1570
The Issue Whether an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
The Issue The issue in this matter is whether Petitioner is entitled to retroactive disability retirement benefits from June 1, 1999, through April 30, 2001.
Findings Of Fact Petitioner was a bus driver employed by the Lee County School Board. He has a tenth-grade education and is of normal intelligence. Petitioner had worked for Lee County Schools for over eight years when he had a work related injury in March 1997. Upon settlement of his claim for workers' compensation, he resigned his position with Lee County Schools on June 22, 1999. On April 20, 2001, Petitioner, for the first time, sought information regarding disability retirement benefits from his personnel office and met with Griffin for that purpose. At that time, Petitioner had 8.33 years of creditable service. After meeting with Petitioner, Griffin sent an e-mail to Mark Sadler (Sadler), who at that time served as the Disability Administrator for the Division. During the e-mail exchange, in-line-of-duty disability benefits were not mentioned. Regular disability benefits under the FRS require that a member be "vested." In this case, that required a member, including Petitioner, to have ten years of creditable service (it has since been changed by the Legislature to six years). In-line-of-duty disability benefits, on the other hand, were available from the first day of employment. On August 1, 2001, Petitioner contacted the Division to inquire about benefits. As a result of the call, the Division sent a disability handbook and application to Petitioner on August 14, 2001. The disability handbook contains a description of all disability benefits available to members, as well as requirements for obtaining those benefits. On January 25, 2002, the Division received an application for in-line-of-duty disability benefits from Petitioner. After receiving and reviewing the relevant materials, the Division approved his application for benefits and added him to the retired payroll effective February 1, 2002. Shortly after being approved, Petitioner requested the Division to re-establish his effective date of retirement to April 1, 2001, based on the e-mail exchange between Griffin and Sadler. After reviewing Petitioner's file, the Division determined that he had attempted to apply on April 20, 2001, and accordingly re-established his effective retirement date as May 1, 2001, the first day of the following month. Shortly after the Division changed his effective retirement date to May 1, 2001, Petitioner then requested the Division to re-establish it as June 1, 1999, to correspond with his resignation. Howell again reviewed his file. Since there was no evidence of any earlier attempt to apply for benefits, the Division correctly determined that Petitioner's May 1, 2001, effective date was accurate. On July 23, 2003, the Division issued the Final Agency Action denying his request for a June 1, 1999, effective retirement date, and Petitioner timely appealed. According to the rules adopted by the Division, when a member applies for retirement benefits more than 30 days after his or her termination, the effective retirement date is established as the first day of the month following receipt of the application by the Division. The Lee County School System does not routinely provide termination or worker's compensation information to the Division, unless it is in connection with an application for benefits. Since Petitioner made no application for benefits, the Division was not aware that Petitioner's employment was terminated as of June 22, 1999, until the e-mail exchange in April 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner's request for an effective retirement date of June 1, 1999. DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2004. COPIES FURNISHED: William C. Strickland 8230 Ebson Drive North Fort Myers, Florida 33917 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Respondent should grant Petitioner's request to change Petitioner's type of retirement from In-Line-Of-Duty (ILOD) disability retirement to regular service retirement, after he had made application for ILOD and received some of those benefits.
Findings Of Fact Petitioner, Ronald Hodge, was employed under the Florida Retirement System (FRS) for 31.34 years. On December 19, 1996, he filed the Application for In-Line-Of-Duty (ILOD) Disability Retirement, Form FR-13, with Respondent, Florida Division of Retirement. The Application for ILOD Disability Retirement was signed by Petitioner in the presence of a notary public. In the lines of text immediately before Petitioner's signature, the Application for ILOD Disability Retirement provides, in relevant part: . . . . 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 or deposited. (emphasis added) See also Rule 60S-4.002(4), Florida Administrative Code. On February 19, 1997, Petitioner was accepted as permanently and totally disabled by the State of Florida and began receiving Workers' Compensation permanent total disability benefits for the same accident for which his ILOD disability benefits were accepted by the Division of Retirement. On April 25, 1997, the Division notified Petitioner that his application for ILOD disability benefits had been approved, but that since he also qualified for regular retirement benefits, he had several options available to him. With the letter of April 25, 1997, he was given four different estimates of retirement benefits. He was further advised to send his decision in writing. The letter of April 25, 1997, also advised Petitioner that "You have the option of choosing the type of retirement you wish to receive . . . . If you decide to change from disability to service retirement, complete the enclosed application for service retirement, Form FR-11 and return it also." No deadline for changing his service retirement was specified in the letter. At the time of the April 25, 1997, letter Petitioner had not received any retirement benefit payments. Petitioner responded to the Division's April 25, 1997, letter on May 4, 1997. Petitioner clarified that he had ". . . selected F.R.S. ILOD (In-Line-Of-Duty) disability benefit Option 2 . . ." His decision was based on the estimates of benefits enclosed in the Division's letter of April 25, 1997. In June 1997, Petitioner began to receive disability retirement benefits in the monthly amount of $1,850.33. In May 1997, in a case in which neither Petitioner nor Respondent was a party, the Florida Supreme Court ruled that ILOD disability retirement benefits paid to recipients of Workers' Compensation benefits could be used to offset/reduce Workers' Compensation benefits. Escambia County Sheriff's Department v. Grice, 692 So. 2d 896 (Fla. 1997). Importantly, Respondent was not aware at the time that it sent the estimates of benefits to Petitioner in April 1997, of the Supreme Court's decision in Escambia County Sheriff's Department v. Grice, 692 So. 2d 896 (Fla. 1997), in May 1, 1997. However, Respondent was aware of the decision before the election was made and before the first benefit was paid of prior decisions in Barragan v. City of Miami, 454 So. 2d 252 (Fla. 1989), and Brown v. S.S. Kresge Co., 305 So. 2d 191 (Fla. 1974), which limit the combination of such benefits to 100 percent of a claimant's average weekly wage. However, these decisions did not address the offset issue. Respondent never informed Petitioner of this potential reduction when advising him of the selection options. In September 1997, the State of Florida began to take an offset against Petitioner's Workers' Compensation benefits for his disability retirement benefits, thereby reducing the total amount of his Workers' Compensation benefits. If Petitioner had been receiving service retirement benefits, no offset against his Workers' Compensation benefits would have been taken. Based on the effect of the Grice, decision supra. Petitioner sought to change his type of retirement from ILOD disability retirement to regular service retirement. Petitioner's retirement benefit has never been reduced. Petitioner, subsequently filed Application for Service Retirement, Form FR-11, notarized on October 8, 1997, and by letter dated October 7, 1997, which advised that he " . . . had decided to change from disability to service retirement. " Petitioner's Application for Service Retirement was cancelled by Respondent on November 4, 1997, with notice to Petitioner that Respondent's records indicated that he was added to the June 1997 Retired Payroll under ILOD Electronic Fund Transfer (EFT) monthly benefit. Because benefit payments had been deposited, Petitioner's retirement was final. By letter dated December 8, 1997, Petitioner requested reconsideration by the Respondent of its decision to cancel his Application for Service Retirement and to deny his request to change his type of retirement. He stated that he was " . . . not receiving the benefits I was led to believe I would receive because of setoffs taken by the state of Florida on my Workers' Compensation benefits . . . ." He further stated he was misled in that the Division representative informed him that he could change from disability retirement to service retirement by just completing the Form FR-11. At best, the letter of April 25, 1997, is ambiguous as to when the election to change types of benefits could be made and as to whether this letter superseded the previous statement in the original application for ILOD benefits signed by Petitioner that stated he could not change his election of benefits once benefits had been paid. However, the ambiguity in the letter does not constitute a misrepresentation of fact by the Division. The letter simply did not address the issue. Moreover, Petitioner was aware of the language in Form FR-13 that benefit elections were final once benefits were received. Respondent has never reduced or offset any member's benefit, whether disability or regular service retirement, due to receipt of any other benefit. In short, Petitioner's retirement benefit is not being reduced. Moreover, the reduction in Petitioner's Workers' Compensation benefits was not due to Respondent's fault, action, or representation to Petitioner. At the time of retirement, Petitioner was eligible to receive either service retirement because of his more than 30 years of service, or disability retirement because of his ILOD injury. If Mr. Hodge were to be granted service retirement benefits rather than disability retirement benefits, his total monthly payments from the State of Florida (retirement and Workers' Compensation) would be substantially increased.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Retirement issue a Final Order denying Petitioner, Ronald Hodge, the relief sought herein, as Respondent has no basis in law or equity to change Petitioner's type of retirement. DONE AND ENTERED this 28th day of April, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 28th day of April, 1999. COPIES FURNISHED: Emily Moore, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Anthony J. Salzman, Esquire Moody and Salzman, P.A. Post Office Drawer 2759 Gainesville, Florida 32602 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of religion and national origin and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Mr. Lalla is Hindu, and his religion is Hinduism. Mr. Lalla was employed in the County’s Enterprise Technology Services Department (ETSD). ETSD provides information technology (IT) services supporting the operations of other departments in the County. ETSD manages and maintains the IT infrastructure, including computer hardware and software, and the County’s electronic communications network. On January 31, 2005, Mr. Lalla was hired as an Operating Systems Programmer (OSP) in the Enterprise Security Office (ESO) of the County’s ETSD. An OSP is an advanced level technical professional, who may have duties in a number of different infrastructure support areas within ETSD. On December 18, 2007, Mr. Lalla received a written reprimand as a result of his failure to report a suspected security breach of the County’s computer security system. The written reprimand was for incompetence or inefficiency in the performance of his duty, negligence or willful misconduct, and conduct unbecoming a County employee. Further, connected to the reprimand, Mr. Lalla was reassigned within the IT infrastructure area to another division, the Data Center Division, at which he had new duties and responsibilities. His new supervisor was Adrienne DiPrima. In an email dated December 17, 2008, from Ms. DiPrima to Mr. Lalla, among other things, Ms. DiPrima welcomed Mr. Lalla, indicating that their group was “hoping for a new person to work with [them] on mainframe security” and acknowledging that he had a very limited background in mainframe security. Further, among other things, she advised him that, because it was “a difficult time of year to get started on anything long-term,” for now, he would be working closely with another employee to handle the “day-to-day RACF administration tasks” so that the employee could “concentrate on the upgrades being done for the new operating system release.” On or about January 15, 2008, Mr. Lalla’s reassignment was effective and that was when Ms. DiPrima first met with him. She was leaving the next day for a vacation. Ms. DiPrima met with Mr. Lalla briefly. During the meeting, among other things, she indicated to him that, during her absence, she wanted him to become familiar with the day-to-day operations and work with the person in the particular area that he (Mr. Lalla) was assigned, with that person also being Mr. Lalla’s mentor. Additionally, they discussed the potential for training Mr. Lalla in his new area and the possibility of the Data Center Division funding the cost for training courses. When Ms. DiPrima returned from vacation, she and Mr. Lalla also reviewed the procedure for requesting leave time. Among other things, she advised him that she does not generally deny leave if coverage for the absent person’s duties and responsibilities is available; but for extended leave, for instance a week or two, advance request/notice and approval were required in order to make sure that a person was available for coverage and to make arrangements for the coverage. For several months, Ms. DiPrima saw nothing in Mr. Lalla’s work performance that suggested any disciplinary issues might arise. Therefore, no disciplinary action was contemplated against him. At no time in the reassignment did anyone suggest or did Mr. Lalla believe that he was going to be subjected to any disciplinary action. However, having gone through the previous disciplinary action, together with learning new responsibilities and duties in what he believed to be a short period of time, Mr. Lalla was feeling pressured. The perceived pressure affected him mentally and physically. On April 3, 2008, Mr. Lalla submitted a leave of absence form to ETSD’s Personnel Officer, Shanda Mazzorana, for an unpaid leave of absence for the period from April 9, 2008, through April 9, 2009. The form contained, among other things, a section for the reason for the request, with one of the reasons being “Personal Reason” and subcategories being “Religious holidays,” “Education not related to the job,” and “Other.” He checked “Personal Reason,” “Education not related to the job,” and “Other.” Also, among other things, the leave of absence form provided two lines for the explanation for the request. Mr. Lalla provided as an explanation for the one-year leave of absence that the request was for “Religious and spiritual pursuits of Buddhism at overseas Monastery.” Mr. Lalla did not attach any documents to his request. Ms. Mazzorana asked Mr. Lalla to further explain why he wanted the unpaid leave. He informed her that he was seeking leave to study Buddhism. She requested him to provide some written information to supplement his request. In response to Ms. Mazzorana’s request, Mr. Lalla provided a single page informational sheet about the Buddhist Monastery that he had obtained from his mother. She attached the informational sheet to his request and forwarded the entire packet to the Director and Chief Information Officer, Donald Fleming, for his review and decision. Buddhism and Hinduism are interrelated. Mr. Lalla believed that the religion of Buddhism provided him a remedy to deal with the mental pressures that he was experiencing at work, instead of seeking medical or psychological assistance either privately or through his employer, the County. Nowhere in his request did Mr. Lalla express this reasoning for his request. Mr. Lalla’s religion of Hinduism did not require him to study Buddhism at a monastery for a year. Ms. DiPrima was unaware that Mr. Lalla wanted or had requested an extended leave of absence. Before making a final decision, Mr. Fleming inquired of Ms. Mazzorana whether any prior employees had requested an extended leave of absence that was non-health or non-medical related. Ms. Mazzorana provided two precedents that had occurred over a 25-year period. One situation involved a full- time employee who requested a leave of absence for six months in order to obtain an advanced degree, a Ph.D. The request was denied. Another situation involved a probationary employee who requested a six-week leave of absence to attend a religious retreat. A probationary employee did not have the right to request a leave of absence, and, as a result, his request was also denied. The County’s Leave Code, Section 8, Leave of Absence is applicable to the instant case. Section 08.01.01, as to a leave of absence generally, provides, among other things, that “A leave of absence is an approved absence without pay for a maximum period of one year.” No dispute exists that Mr. Lalla was eligible for a leave of absence as a permanent employee pursuant to Section 08.02.01. Also, Section 08.03.01 sets forth the reasons that a leave of absence may be granted, i.e., medical reasons, job- related reasons, personal reasons, and military, and provides in pertinent part: A leave of absence may be granted for the following reasons: Medical Reasons * * * Job-related Reasons Education related to the job . . . To serve as a full-time representative of an organization composed entirely of County employees To accept an exempt position For other job-related reasons in the best interest of the County service . . . Personal Reasons Education not related to the job . . . Dependent care for a child, spouse, parent or other dependent for federal income tax purposes who is physically or mentally incapable or caring for himself . . . For other personal reasons in the best interest of the County service . . . Military . . . . Additionally, Section 08.04.00 sets forth the application procedure for a leave of absence and provides in pertinent part: 08.04.01 Employees seeking a leave of absence must make a written request to their department director . . . * * * 08.04.03 The department director may request any additional information supporting the request for the leave of absence . . . 08.04.04 The department director may approve or deny requests based on the facts of each case. Approval or denial by the department director must be applied consistently and on the same terms within categories a, c and d of Leave of Absence (Section 08.03.01) although the terms for each separate category may be different. . . 08.04.05 Approval may be for the full period requested by the employee or any portion of such period. Further, Section 08.05.00 sets forth the benefits period for a leave of absence and provides in pertinent part: 08.05.01 A leave of absence may be granted for a maximum period of one year . . . and a minimum period of one pay period. Mr. Fleming considered the staff situation at the County. The County was in a hiring freeze and had lost positions. Mr. Fleming also considered the staff situation at the Data Center Division. A review by him showed that the Data Center Division was understaffed. Mr. Fleming was unable to determine how he would be able to burden the staff with the additional work, if Mr. Lalla’s request was granted, and get the work completed. Additionally, Mr. Fleming considered Mr. Lalla’s request as an academic request, with a religious course of study. Taking into consideration the totality of the circumstances, as to the staff situation at the County and, in particular, at the Data Center Division, the inability to effectively and efficiently re-assign Mr. Lalla’s duties and responsibilities, during his one-year leave of absence, and the precedent of requests for extended leave of absence, Mr. Fleming determined that there was no reasonable basis to grant Mr. Lalla’s request. On April 7, 2008, Mr. Fleming denied Mr. Lalla’s request. Even if Mr. Lalla’s request were considered a religious request, the result would have been the same. Based on the same reasoning, Mr. Fleming would have denied a religious request. Mr. Lalla would have agreed to a shorter period of time as an accommodation to what he (Mr. Lalla) was requesting. However, neither Mr. Fleming nor Mr. Lalla suggested an accommodation of a shorter period of time for the leave of absence. Additionally, Mr. Lalla was aware that a Buddhist monastery was located in Homestead, Florida. He did not suggest to Mr. Fleming, as an option, attending the Buddhist monastery in Homestead, instead of in India. No evidence was presented that Mr. Fleming was aware of the monastery in Homestead. Ms. Mazzorana advised Mr. Lalla of the denial of his request for a leave of absence by Mr. Fleming and the reasons for the denial. She provided Mr. Lalla a copy of the completed leave of absence form that was signed by Mr. Fleming. Ms. DiPrima was also advised of the denial of Mr. Lalla’s request for the extended leave of absence. On April 14, 2008, Mr. Lalla requested approval from Ms. DiPrima for a two-week vacation beginning the next day on April 15, 2010. Among other things, he advised her that the union was attempting to get the one-year leave of absence approved; that there were certain things that he wanted to do in preparation for the one-year leave of absence; that the two-week vacation would provide him that preparation time; and that two co-workers were available to and had agreed to perform his duties during his absence. Ms. DiPrima denied Mr. Lalla’s request for the two- week vacation. She pointed out to him that there were assignments that he had not completed and that the request was not submitted sufficiently in advance to make sure that his work duties and assignments were covered. Mr. Lalla decided that he could no longer remain with the County. He decided to resign. Mr. Lalla did not discuss with anyone at ETSD that he was contemplating resigning or his decision to resign. On April 15, 2008, Mr.Lalla sent a memorandum to Human Resources regarding his resignation. He indicated, among other things, that, due to recent workplace circumstances, which “severely impacted [his] mental and spiritual health” and the denial of his request for a leave of absence, he was “forced to tender [his] resignation under duress, effective immediately.” Further, among other things, he set forth the workplace circumstances, which were, in essence, how ETSD handled the suspected security breach in the Security Office and handled him and his fellow employees in the Security Office; and set forth the circumstances of the denial of his request for a leave of absence, which he sought for “Religious and Spiritual pursuits,” attempting “to rebuild and repair [his] damaged mental and spiritual health.” Furthermore, on April 15, 2008, among other things, Mr. Lalla sent an email to Ms. DiPrima, while she was at lunch, indicating that, having reviewed what had occurred over the past 12 months, he was “forced” to resign, effective immediately, “under duress.” Further, he cleared his desk; reformatted his computer; and walked out of ETSD without speaking to anyone. The County’s policy required Mr. Lalla to give at least two weeks notice before resigning if he wanted to resign in good standing. By failing to give at least two-weeks notice, he did not resign in good standing.
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 finding that the County of Miami-Dade, FL ETSD did not commit an unlawful employment practice by discriminating against Delano Lalla on the basis of religion and national origin and retaliated against Delano Lalla in violation of the Florida Civil Rights Act of 1992, as amended. DONE AND ENTERED this 3rd day of June, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of June, 2010. COPIES FURNISHED: Delano Lalla 8051 Southwest 159th Court Miami, Florida 33193 Lee Kraftchick, Esquire Miami-Dade County Attorney’s Office 111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of physical handicap.
Findings Of Fact Brettell was hired by Morse in January 1998 as a licensed practical nurse. Sometime after she began working for Morse, she sustained a work-related injury. No evidence was presented to establish exactly what the injury was. Brettell claims that she was discriminated against based on a handicap, but very little evidence was presented concerning any handicap that she may have. She presented two Notices of Action/Change forms issued by the Florida Department of Labor and Employment Security, Division of Workers' Compensation, related to Brettell and issued on February 18 and April 4, 1999. The Notice of Action/Change issued on February 18, 1999, stated: Employee was placed at maximum medical improvement with a 6% permanent impairment rate effective 01/16/99. Impairment income benefits of $192.80 per week for 18 weeks, effective 01/016/99. The April 4, 1999, Notice of Action/Change, stated, "Stopping impairment income benefits. Claimant was put on temporary partial disability as of 3/15/99." Neither Notice of Action/Change indicated the nature of the impairment. At the final hearing in response to Morse's Motion to Dismiss, Brettell made the following statement: [I]t does limit me on a daily basis. I have been complaining since Day 1 almost that I am losing feeling in my hands and my arms and my fingers. I'm having problems with my knee, making it difficult for me to walk. I have cervical spine problems. Brettell did not establish that she had a disability or a handicap. On April 23, 1999, Brettell was to work as a Medication Treatment Nurse. The job duties of a Medication Treatment Nurse include pushing a medication cart and dispensing medications to the residents. When Brettell learned that she was to push the medications cart and give medications on April 23, 1999, she spoke to Leonie Whorms (Whorms), who supervised Brettell at various times, and told Whorms that it was her understanding that she had been placed on light duty and was not supposed to push the medications cart. Whorms told Brettell that she had a doctor's statement dated February 19, 1999, from Dr. Russo, one of Brettell's treating physicians, stating that Brettell could push the medications cart and pass out medications. Brettell asked for a copy of the doctor's statement, which Ms. Whorms provided. Brettell agreed the statement indicated that she could push the medication cart and dispense medications. Brettell told Whorms that she had discharged Dr. Russo within the last month and that she had a new physician, Dr. Linder. Whorms informed Brettell that she would need a notification from Dr. Linder regarding any limitations that Brettell may have. Brettell contacted Dr. Linder's office and had a report sent by facsimile transmission to Morse. Based on Whorms' understanding of the report from Dr. Linder, Brettell was not supposed to push the medication cart. After Dr. Linder's report was sent to Morse on April 23, 1999, Brettell was not required to push the medications cart. No evidence was presented to establish that between the time that Morse received the report from Dr. Russo and April 23, 1999, when the report from Dr. Linder was sent to Morse, that anyone at Morse knew Brettell had changed doctors and a new report had been issued. Brettell stated that Whorms was the only person who harrassed her on April 23, 1999. Whorms was not aware that a new doctor's report had been issued until she received Dr. Linder's report on April 23, 1999. Brettell testified that Whorms told her on April 23, 1999, that if Brettell wanted to do nothing that Morse could find her a job doing nothing. Whorms denies making the statement. Having judged the credibility of the witnesses, I find that Whorms did not make the alleged statement. Brettell claims that in November 1998, Whorms told her that if she was in so much pain that she should go on disability or retirement. Whorms claims that she told Brettell that if Brettell was in so much pain that Brettell should go to the nursing office and then clock off and go home. Having judged the credibility of the witnesses, I find that Whorms did not tell Brettell that she should go on disability or retirement. On May 5, 1999, Penny Martin (Martin), a Nursing Unit Coordinator at Morse, asked Brettell to participate in wound rounds, and Brettell agreed to do so. Wound rounds involve a medical team assessing wounds and determining treatment. The wound team, scheduled to arrive at 9:30 a.m., was late. Because the wound team was late, Brettell elected to take her break. Brettell left for her break at 9:40 a.m. While Brettell was on break, the wound team arrived to do rounds. Approximately five to ten minutes after 10:00 a.m., Brettell's supervisor, Terri Nichols (Nichols) asked where Brettell was since she was supposed to be on wound rounds. Martin told Nichols that Brettell had left for break at 9:40 a.m. and had not returned. Nichols had Brettell paged but got no response. Nichols went to look for Brettell and found her in the rose garden, where the page could not be heard. Nichols told Brettell that she was needed for wound rounds and that she was late coming back from her break. Brettell responded that she did not leave for break until 9:50 a.m. Nichols told Brettell that she was still late whether she left at 9:40 or 9:50 a.m. because she had exceeded her alloted 15-minute break. Brettell returned from her break at 10:17 a.m., taking a 37-minute break. After lunch on May 5, 1999, Nichols asked Brettell to come to Nichols' office to discuss the lengthy morning break. Brettell told Nichols that she would not go into Nichols' office alone to which Nichols replied that Whorms would also be in the office. Brettell sought to have a subordinate employee come into the office with her, and Nichols told Brettell that a subordinate employee could not accompany Brettell into the office for the conference. Brettell still would not enter the office and called a security guard. The security guard arrived. Nichols contacted Suzanne Richardson (Richardson), Vice President of Nursing Services at Morse, and Vicky Porter (Porter), Vice President of Human Resources at Morse. Richardson and Porter were in a meeting together when Richardson received the call. Nichols advised Richardson that she was having difficulty in having a conference with Brettell, because Brettell was refusing to come into her office. Nichols was advised to go to the Human Resources Department. Brettell, Nichols, and the security officer went to the Human Resources Department, where Porter asked Brettell to come into Porter's office to discuss why Brettell did not want to go into Nichols' office for a conference. Brettell refused to go into Porter's office unless the security guard accompanied her. Richardson and Porter told Brettell that the conference was not a security issue and the security officer would not be allowed in the conference. Porter explained that the Human Resources Department was supposed to be neutral ground where employees could voice their concerns and that the security officer needed to return to his assigned duties. Porter again asked Brettell to come into her office, but Brettell refused, stating that she would not go into an office in the Human Resources Department without a security guard. Having a security guard present was not an available option. Brettell asked for a few minutes to think about whether she was going to go into the office. Everyone agreed to give Brettell a few minutes to think about the situation. Brettell left the Human Resources Department and went to a nursing unit in the Edwards Building to call her attorney. Her attorney was on the telephone with another client, so Brettell had to hold the line and wait for her lawyer to become available to speak with her. Approximately 30 minutes passed, and Brettell had not returned to the Human Resources Department or notified either Richardson or Porter of her decision. Nichols went to look for Brettell and found her in the Edwards Building using the company telephone to call her attorney. Nichols told Brettell to come back to the Human Resources Department, but Nichols refused, stating that she was on the telephone holding for her lawyer. Nichols called Richardson and told her that Brettell was refusing to hang up the telephone and come back to the Human Resources Department. Richardson and Porter came to the Edwards Building. Richardson asked Brettell if she was on a break and whether the call was for company business or personal. Brettell responded that she was not on break and that the call to her attorney was personal. Richardson told Brettell to get off the telephone, because Brettell was not authorized to use the telephone at the nursing unit for personal calls when she was not on a break. Brettell did not hang up the telephone. Richardson went to Porter and told her that Brettell was still on the telephone. Porter went to Brettell and told her that is was inappropriate for her to be using the telephone and that she was to clock out and go home. Richardson recommended that Brettell be terminated for violation of the company's policies. Brettell was terminated for insubordination and using the company telephone for personal business when not on a break, and not because of any handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Joyce Brittell's charge of discrimination. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 7th day of December, 2000. COPIES FURNISHED: Joyce Brettell 3743-4 Silver Lace Lane Boynton Beach, Florida 33436 Lynn G. Hawkins, Esquire Fitzgerald, Hawkins, Mayans & Cook, P.A. 515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401 Dana A. Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Agency Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
