Findings Of Fact Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner was denied reasonable accommodation for his disability by Respondent in violation of the Pinellas County Code, Chapter 70 (“Chapter 70"). Whether Petitioner was wrongfully terminated from his position as a bus operator by Respondent because of his disability in violation of Chapter 70.
Findings Of Fact Petitioner, Richard Mastromarino, is a resident of St. Petersburg, Pinellas County, Florida. Respondent, Pinellas Suncoast Transit Authority, is publicly funded transit agency and is an employer under Pinellas County Code, Chapter 70. Petitioner was employed by Respondent from May 7, 1979, until June 10, 1997, as a bus operator. The position of bus operator requires a commercial driver’s license. After experiencing vision problems, Petitioner visited his primary physician in February 1997. The primary physician diagnosed Petitioner with diabetic retinopathy and referred him to an ophthalmologist. After his diagnosis, Petitioner informed his immediate supervisor of his condition and availability to do light-duty work, and requested a medical leave form to take with him to his appointment with the ophthalmologist. On March 3, 1997, Petitioner visited ophthalmologist Dr. William T. Cobb, who confirmed the diagnosis of diabetic retinopathy, a condition that causes the blood vessels in the retina of the eye to excrete liquid and blood, thus impairing vision. Dr. Cobb informed Petitioner that as a result of his diabetic retinopathy, his vision was insufficient to drive any vehicle, including PSTA buses. In a Progress Report dated March 3, 1997, Dr. Cobb indicated that Petitioner “works as a bus driver and his occupation is threatened by his ocular disease.” Dr. Cobb also completed Petitioner’s medical leave form entitled Certification of Health Care Provider. On the form, Dr. Cobb described Petitioner’s vision as “limited to less than required for driving a bus.” The form also inquired whether Petitioner was able to perform any one or more of the essential functions of his job. In response, Dr. Cobb indicated that Petitioner was “unable to see to drive.” With regard to the probable duration of Petitioner’s incapacity, Dr. Cobb stated that the duration was “unknown.” Petitioner was referred by Dr. Cobb to Dr. W. Sanderson Grizzard for laser surgery. The first of several surgeries were performed in May and June of 1997. During this time, Petitioner was extremely concerned about the outcome of the surgeries. He understood from his physicians that there was a chance that his visual limitations could worsen and that there was a possibility that he might lose his eyesight altogether. Therefore, his immediate goal was to obtain medical leave under the Family Medical Leave Act (“FMLA”) in order to have the surgeries performed. He also desired light-duty work in order to stay employed while he scheduled the surgeries. He was hoping that when his surgeries were complete, he could discuss his future with PSTA as far as which other jobs he could perform. He estimated that he would be able to discuss future work with PSTA in August or September of 1997. This information, however, was not conveyed to PSTA. Petitioner’s inquiries to his immediate supervisor regarding light-duty were referred to Gail Bilbrey, Benefits Specialist. Bilbrey administers a program instituted by Respondent, although not in writing, that assigns eligible employees on workers’ compensation leave to available temporary, part-time light-duty positions that accommodate their physical restrictions. In administering the program, Bilbrey reviews the medical documentation of an employee on workers’ compensation leave and determines if an existing position is vacant within one of several PSTA departments that the employee may be able to perform given the employee’s physical limitations. Because the positions available under this program are existing positions and are part of a bargaining unit of a labor union, light-duty assignments are not created for individual employees. Light- duty positions are extremely limited in number and are often not available for all employees injured on the job. The purpose of PSTA's light-duty program is to save costs of workers' compensation injuries by utilizing employees on workers' compensation leave, whom PSTA is required to pay, in vacant light-duty positions. Temporary light-duty positions, thus, are given to employees on workers' compensation by PSTA. The intent of the program is for the employee to occupy the position only on a temporary basis; thus, light-duty assignments are only granted to employees who are expected to return to work in their regular job. Since Petitioner was not on workers' compensation leave and was not expected to return to his bus-driving job, Petitioner was not eligible for a light-duty assignment. Even if Petitioner had qualified for light-duty, no light-duty positions were available at PSTA at the time of his request. Petitioner was informed of the lack of light-duty work during several conversations with Bilbrey. In response to his request, Bilbrey also prepared a memorandum dated April 23, 1997, indicating that no light-duty was available at that time. The main light-duty positions available at PSTA involved money-counting and ride surveying. Petitioner’s vision impairment prevented him from performing the functions of ride surveying, which includes observing passengers boarding and exiting PSTA buses at each bus stop and recording the results in writing. The money-counting light-duty position required the use of money-counting machines, checking bills, handling coins, and delivering/picking up tickets and money at Respondent’s remote terminals. Despite his vision limitations, Petitioner claims to have been aware of several full-time positions that he alleges he would have been able to perform in June 1997. First, Petitioner claims to have been able to perform the position of fueler/cleaner, which requires a valid Florida Class “B” Commercial Driver’s license, with passenger endorsement and air brakes, the ability to clean buses, and the ability to check coolant and oil levels. However, Petitioner had relinquished his commercial driver’s license in 1997, his physicians had stated he could not drive a bus, and, as observed by Bilbrey, his vision was insufficient to perform the job duty of checking coolant and oil levels. Two other positions became available at PSTA during the time in question which Petitioner now contends he would have been able to perform with adaptive equipment. First, the position of Customer Service Representative was posted by PSTA in early March 1997. This position involves selling tickets and passes, giving route and scheduling information to the public, and delivering supplies to three of Respondent’s remote locations. In 1997, maps and route schedules were not computerized and involved reading very small print. In addition, if Petitioner had qualified for and had been awarded the position, as the least senior Customer Service Representative, Petitioner likely would have been assigned as a “floater,” requiring Petitioner to be able to “float” between different remote terminals at different times to relieve other Customer Service Representatives. The shift of Customer Service Representatives begins at 6:00 a.m., prior to regular bus service. Given the fact that Petitioner was unable to read the fine print of the maps and schedules in a timely fashion and because transportation to deliver supplies, to float between terminals, and to report to work at 6:00 a.m. prior to bus service would have been a significant issue, Petitioner would not have been able to perform the job of Customer Service Representative. Also, in June 1997, the position of Clerk Risk Management became available. Petitioner had limited computer and clerical experience. Therefore, because this position requires extensive typing, computer work, and proofreading, Petitioner did not qualify for the position due to his limited vision and lack of computer experience. Petitioner was unable to perform these functions. After several surgeries, Petitioner's vision has stabilized but he is still legally blind by Social Security disability standards. Regardless of whether Petitioner would have been qualified, Petitioner did not apply for a request consideration for any of these positions or provide any documentation to Respondent indicating his ability to perform these jobs. Instead, in May 1997, Petitioner applied for long-term disability benefits. He completed the application in Bilbrey’s office with the aid of a magnifying glass. Attached to the application for long-term disability benefits was an Attending Physician’s Statement dated April 30, 1997, which was also provided to Respondent by Petitioner. On the form, Dr. Cobb indicated that the approximate date Petitioner would be able to resume any work was “indefinite” and that his prognosis for work was secondary to vision. Petitioner was granted and accepted long-term disability benefits. Pursuant to the long-term disability policy, Petitioner was found totally disabled and could not work. In addition, in April 1997, Petitioner requested an extended leave of absence beyond his FMLA leave that was due to expire in June 1997. However, when applying for the extended leave of absence, Petitioner was unable to specify a time frame in which he would be able to return to work. In fact, in a letter dated May 28, 1997, provided to Bilbrey on June 9, 1997, in support of Petitioner’s request for extended leave, Dr. Grizzard indicated that he “would expect [Petitioner] to not be able to work for at least 3 months.” Because Petitioner’s physicians were not able to provide a specific date when he could return to work, Petitioner’s request for extended leave was denied in accordance with Respondent’s policy. Thereafter, since Petitioner had exhausted all FMLA leave, was unable to perform the essential functions of his job as a bus operator, even with reasonable accommodations, and was unable to provide a definite date of return, Petitioner was terminated from his position as a bus operator on June 10, 1997, in accordance with PSTA policy. After his termination, Petitioner filed a grievance wherein he again requested an extended leave of absence until September 9, 1997, so that he could concentrate on his surgeries and to determine if he would be able to return to work at PSTA. A grievance hearing before Executive Director Roger Sweeney was held on June 30, 1997. At that hearing, Petitioner did not request light-duty assignment or reassignment to a new permanent position. Petitioner’s grievance was denied since Petitioner was unable to perform the duties for which he was hired, had been absent from employment with PSTA in excess of three months, had exhausted all FMLA leave, and was unable to provide a definite date of return. Following the grievance hearing, Petitioner was referred by the Division of Blind Services to Abilities of Florida for vocational rehabilitation training in January 1998. An assessment of his abilities indicated that Petitioner had limited keyboarding, computer, and clerical experience and was unable to score high enough on the 10-key calculator test to qualify for clerical training. Approximately three years after his termination, Petitioner also requested an evaluation to determine whether he could count money. In an informal test, Petitioner counted $55 in petty cash. However, no vocational report was ever provided to PSTA by Petitioner. The evidence fails to prove that Respondent’s employment decisions toward Petitioner were based upon or influenced by his disability.
Recommendation Based on the foregoing, It is RECOMMENDED that Petitioner’s Charge of Discrimination be dismissed with prejudice. DONE AND ENTERED this 9th day of April, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 9th day of April, 2002. COPIES FURNISHED: Craig L. Berman, Esquire Berman Law Firm, P. A. 360 Central Avenue Suite 1260 St. Petersburg, Florida 33701 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759
The Issue Whether the Respondent discriminated against the Petitioner contrary to statute on the basis of Petitioner's disability.
Findings Of Fact Petitioner was diagnosed with cancer in December of 2002, and was on sick leave off and on from the time of her diagnosis until the first part of 2004. Later, after surgery, the Petitioner was on extended leave while she recovered from surgery and later from chemotherapy. In June of 2003, Petitioner was rapidly approaching the end of her available leave, but, more significantly, the end of the leave required to be granted under the Family Medical Leave Act (FMLA). This situation resulted in correspondence between Petitioner and the Department about extension of her leave and her return to work. On June 17, 2003, Jeff Carr, Human Resources Manager for the Department, sent a letter to Petitioner in connection with her medical leave status. This letter advised Petitioner that an agreed-upon extension of leave would cover Petitioner until July 4, 2003. As the latest physician's statement submitted by Petitioner indicated that Petitioner was unable to perform the essential functions of her job, the letter from Mr. Carr advised Petitioner of options available to her: 1) a return to work on July 5, 2003, if she was released by her physician as able to perform the essential functions of her job; 2) resignation if she was unable to perform the essential functions of her job; 3) regular or disability retirement. If Petitioner did not choose one of the three options, she was advised she would be terminated. On June 23, 2003, Petitioner wrote to Beth Englander, District Administrator, requesting additional leave in accordance with her doctor's latest evaluation. A copy of a note from Petitioner's oncologist was attached which stated that Petitioner would need to be off at least six to eight weeks. In addition, Petitioner noted that following completion of chemotherapy she would need additional surgery and would need to make additional requests for leave. Petitioner e-mailed Ms. Englander on June 24, 2003, and Ms. Englander replied that same day. The reply again advised Petitioner of her three options to avoid termination for inability to perform her job. After having been twice advised of her options, Petitioner wrote Mr. Carr on June 27, 2003, advising that she would not finish her chemotherapy treatment until approximately September 1, 2003. However, no estimate was given for Petitioner's medical release to return to work following the additional surgery Petitioner said she would need in her letter to Ms. Englander of June 23, 2003. In her letter of June 27, 2003, Petitioner requested additional leave as what she claimed to be a reasonable accommodation under the Americans With Disabilities Act (ADA). Petitioner also said she wanted to work at home in lieu of leave. However, Petitioner provided no doctor's statement to contradict the one she submitted saying that she would be unable to work for six to eight weeks. On July 6, 203, Petitioner wrote Mr. Carr that she was accepting the alternative of retirement. In this letter, Petitioner again stated that she was not finished with treatment and would need additional time to complete the treatment. At the hearing, Petitioner admitted that she was unable to inspect daycare facilities to conduct the inspections required as an essential function of her position. In addition to the regular inspections, initial licensing and relicensing inspections, day care licensing counselors also have to make inspection in response to complaints received by the Department. Petitioner said that, as an accommodation, she wanted to be relieved from conducting inspections and be permitted to process the inspection reports prepared by other counselors and other paperwork. Although Petitioner contended at the hearing that she might have been able to work part-time, she admitted that after submitting the statement that she could not return to work for at least six to eight more weeks she had not gone back to her doctor to ask him to clear her for part-time work. Petitioner also speculated that she could have performed inspections on a part-time basis if she was provided with appropriate protective equipment and a mask. Petitioner stated her desire and request for more time off was because of fatigue. She did not request to work part-time, or protective devices as an accommodation at any time before she chose the option of retirement. Petitioner instituted an action before PERC contending that she was forced to either resign or retire in retaliation for her making of a complaint to Department's inspector general. That action resulted in a recommended order by the PERC hearing officer on April 21, 2004, that recommended that PERC dismiss Petitioner's claim. In that recommended order the hearing officer found as fact that: On June 23, 2003, Welch (Petitioner) sent a letter to District 13 Administrator Beth Englander, which included a doctor's note indicating she needed six to eight more weeks of leave. Englander responded to Welch and told her that, because her leave was exhausted and because of the operational needs of her unit, the Agency would not extend the leave. On June 27, Welch replied to Carr's June 17 letter and asked for accommodation under the Americans With Disabilities Act (ADA). The Agency did not specifically respond to this request. However, Welch was not entitled to ADA leave because she could not perform the essential functions of her job in June when she made her request. The full PERC in a final order of May 11, 2004, adopted the recommended order of the hearing officer, including this finding of fact. Petitioner had not been released by her doctor to return to work and perform her duties at the time she chose retirement in July 2003, and admitted that she was not able to come to work at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing Petitioner's charge of discrimination. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005. COPIES FURNISHED: Melody Welch 34548 Oak Avenue Leesburg, Florida 34788 Carolyn Dudley, Esquire Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 32399-9070 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concern whether the Respondent has been discriminated against on account of her handicap or disability in connection with her termination of employment, in alleged violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Teresa Cavanaugh, was employed by Sprint from 1985 through 2000. During 1999 and 2000, Ms. Cavanaugh held the position of Technical Analyst I, assigned to the Carrier Market’s department at Sprint’s National Access Service Center in Leesburg, Florida. In this position, Ms. Cavanaugh was responsible for assuring that orders for the use of Sprint’s local telephone lines by long distance carriers such at AT&T were processed correctly. Ms. Cavanaugh’s immediate supervisor in this position was Robert Whittaker, the Customer Access Manager. Mr. Whitaker’s immediate supervisor was Jackie Picard, the National Customer Service Manager. On August 26, 1999, the Petitioner was arrested in Marion County, Florida and charged with two third-degree felonies involving obtaining a controlled substance by fraud and possession of a controlled substance. The Petitioner informed Sprint’s house counsel, Susan Stucker, of her arrest on August 31, 1999. Ms. Cavanaugh explained the arrest to Ms. Stucker and Ms. Stucker informed Ms. Cavanaugh that she needed to report the arrest to her supervisor. Ms. Stucker also told the Petitioner that as long as the arrest was not related to work, she would be permitted to continue working for Sprint until such time as there was a disposition of the charges. After speaking with Ms. Stucker, the Petitioner informed Mr. Whitaker of her arrest. The Petitioner testified that Ms. Stucker informed her, in the above-described conversation, that her job would not be affected as long as adjudication was withheld with respect to the criminal charges. Ms. Stucker, however, denied telling that to Ms. Cavanaugh and instead testified that she would never have made such a statement because, pursuant to Sprint’s unwritten policy, convictions for or pleas to felony charges are terminable offenses, regardless of whether adjudication is withheld. Ms. Stucker also told the Petitioner that Sprint’s policy was to that effect in a subsequent conversation. This dispute in testimony is resolved in favor of that given by Ms. Stucker because of the respective demeanor of the witnesses and Ms. Stucker’s undisputed testimony that on at least two other occasions she approved terminations of persons who pled nolo contendere to felony charges. Her testimony was corroborated by documentation regarding the nolo contendere plea of one of the persons whose employment was terminated, Wilson Hinson. In fact, as with Ms. Cavanaugh, Mr. Hinson’s records demonstrate that the court withheld adjudication of guilt regarding the charges against him. Several weeks later, on Friday, September 17, 1999, the Petitioner sent an e-mail to Mr. Whitaker expressing that she was "losing control of her mind," was "spinning out of control," felt "helpless and desperate," was "going over the edge," and needed "some serious help." The Petitioner indicated also that she had an "overwhelming sense of helplessness and hopelessness." Ms. Cavanaugh stated in her e-mail, and in testimony at the hearing, that prior to this incident, she never had felt this way. She further testified that she had no prior history of mental illness. After reading the Petitioner's e-mail, Mr. Whittaker became concerned that Ms. Cavanaugh could be a threat to herself or to co-workers. Based upon this concern, he shared the e-mail with Ms. Picard, and both Mr. Whittaker and Ms. Picard informed the Human Resources Department of Sprint of its contents. Mr. Whitaker, Ms. Picard and Colby Gilson, the Manager of Employee Relations, developed a plan whereby the Petitioner would be placed on paid "crisis leave" and referred to Sprint's Employee Assistance Program (EAP) for evaluation as to her ability to safely perform her job. Mr. Whittaker informed the Petitioner that she was being placed on leave and referred to EAP on the morning of her next scheduled work day, Monday, September 20, 1999. After meeting with Mr. Whittaker, the Petitioner was placed on leave and evaluated by the EAP. The Petitioner informed the psychiatrist who was evaluating her as part of the EAP process that her mood had improved after being placed on leave. The Petitioner was cleared to return to work on a part-time basis in late December 1999 or early January 2000. She was allowed to return to a full-time schedule in late January 2000. On or about June 27, 2000, the Petitioner, on her own initiative, commenced a short-term disability leave. Because the leave was for an alleged mental condition, the Petitioner was asked to undergo an independent medical examination (IME) pursuant to Sprint's standard policy of verifying leaves for conditions that are difficult to review through objective medical evidence (e.g., mental conditions and soft tissue injuries). The Petitioner underwent the IME, which confirmed her need for leave. The Petitioner then remained on leave until October 17, 2000, at which time she returned to work on a part- time basis. She resumed a full-time schedule approximately one week later, on October 23, 2000, with no restrictions on her ability to work. Due to the amount of leave the Petitioner had taken to date, during September and October 2000, Sprint's Benefits Department in Kansas City sent the Petitioner two letters informing her regarding the availability of long-term disability benefits and disability retirement benefits, respectively, should she wish to apply for them. These letters were sent out pursuant to the Benefits department's standard practice of notifying employees who have been out comparable periods of time of the availability of such benefits so as to minimize the potential lapse in benefits should an employee exhaust all of his or her short-term disability leave. After her return from leave, on or about October 31, 2000, the Petitioner told Mr. Whittaker that she was taking what she believed to be a very strong prescription that had been given to her by her doctor. Mr. Whittaker consulted with Mr. Gilson as to whether he needed to take any action in response to this information. Mr. Gilson informed Mr. Whittaker that he should require the Petitioner to provide a note from her doctor indicating whether or not she could continue at work while taking the medication. Mr. Whittaker followed Mr. Gilson's directions and requested that the Petitioner provide a note from her doctor. She submitted such a note to Mr. Whittaker on November 2, 2000. According to that note, the Petitioner was cleared to work with no limitations or restrictions, "as long as she participates in treatment and maintains compliance with medications and scheduled appointments." The Petitioner has not established how any major life activities have been substantially limited by any alleged mental condition. On or about November 29, 2000, the Petitioner informed Mr. Whittaker that her probation officer would be calling him to verify that she worked at Sprint and was coming to work on a regular basis. According to Whittaker, at no time prior to that conversation had the Petitioner informed him of any final disposition of the felony charges filed against her. Mr. Whittaker informed Mr. Gilson of this conversation, and Gilson then asked Stacy Smith, a security investigator, to contact the court in Marion County to determine whether there had been any final disposition of the charges lodged against the Petitioner in August 1999. Mr. Smith, who as part of his regular job duties had been tracking the proceedings against the Petitioner and other Sprint employees subject to criminal charges, contacted the Marion County Clerk's office which provided documents showing that, in October 2000, the Petitioner pled nolo contendere to the two felony charges. The documents Mr. Smith received also showed that the court had withheld adjudication on the basis of that plea. The information Mr. Smith received from the court ultimately was provided to Mr. Gilson, Ms. Stucker, Mr. Whittaker and Ms. Picard. Based upon Sprint's unwritten policy regarding terminations for felony convictions or pleas, Mr. Whittaker recommended the termination of the Petitioner's employment. Ms. Picard concurred with Mr. Whittaker's recommendation, as did Picard's immediate supervisor, Krystal Barr. Mr. Whittaker's recommendation was reviewed by Ms. Stucker, Mr. Gilson, and David Sapenoff, Mr. Gilson's immediate superior. Each of these individuals concurred in the decision to terminate the Petitioner’s employment. On the basis of Mr. Whittaker's recommendation, and the above-mentioned concurrences, the Petitioner's employment was terminated on December 14, 2000. Although the Petitioner claims that she was never told the basis for her termination, both Mr. Whitaker and Ms. Picard testified that the Petitioner was told that she was terminated because of her felony plea. This dispute in testimony is resolved in favor of that of Mr. Whittaker and Ms. Picard, given both the respective demeanor of the witnesses and the fact that the records of the Florida Department of Labor and Employment Security indicate that the Petitioner stated in an interview, regarding her entitlement to unemployment compensation benefits, that she was terminated because of her felony conviction.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations denying the Petition in its entirety. DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 9th day of February, 2004. COPIES FURNISHED: Teresa Cavanaugh 3010 Northeast Seventh Lane Ocala, Florida 34470 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Patrick M. Muldowney, Esquire Akerman Senterfitt Post Office Box 231 Orlando, Florida 32802-0231 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to continue to receive benefits under the Florida Teachers' Retirement System.
Findings Of Fact Petitioner was employed as a school teacher in the public school system of Broward County, Florida, prior to October 1, 1989. Petitioner had been so employed for approximately 28 years and he was a member of the Florida Teachers' Retirement System. Petitioner was born January 1939 and was, at the time of the formal hearing, 52 years of age. In addition to his employment as a school teacher, Petitioner worked part-time, on weekends, holidays, and during vacations as a longshoreman at Port Everglades. On August 21, 1988, the Petitioner suffered an injury to his left ankle and leg while working as a longshoreman on the docks at Port Everglades. This accident occurred when a piece of equipment backed over Petitioner, breaking his ankle and leg. Two operations by a Dr. Smith followed the accident. Thereafter, Petitioner was treated by Dr. William A. Morris, III, M.D., a family practitioner. Petitioner applied for disability retirement benefits under the Florida Teachers' Retirement System and asserted that the injuries he suffered on the docks rendered him unable to teach. Respondent thereafter received a certification from Dr. Morris expressing the opinion that Petitioner was disabled as a result of his injuries and unable to teach school. Respondent granted Petitioner's application for disability retirement benefits in partial reliance on Dr. Morris's certification of disability. Petitioner's official retirement date was October 1, 1989, and he thereafter began to receive disability retirement benefits from the Florida Teachers' Retirement System. As part of its operations, Respondent receives computer reports from the Florida Auditor General's Office which provides information as to income earned by retirees who receive benefits under the Florida Teachers' Retirement System. From the Auditor General's report, it became apparent to Respondent that Petitioner continued to work as a longshoreman at Port Everglades. The report reflected that Petitioner was receiving income from several shipping companies at the same time he was receiving disability retirement benefits. Mark Sadler, one of Respondent's Retirement Administrators, thereafter requested that Petitioner complete FRS Form FR-13e, entitled "Retirees' Report of Continuing Disability", so that a determination could be made as to Petitioner's continued entitlement to disability retirement benefits. Petitioner gave a negative response to the following question on Form FR13-e: "Since the date of your disability retirement, or the date you last completed a Disability Evaluation Statement, have you ever been employed in any capacity?" This response was not truthful. Respondent also requested that Dr. Morris complete Form FR-13f, entitled "Physician's Report of Re-Examination" to ascertain his opinion as to Petitioner's continued disability. Dr. Morris returned the form, dated May 7, 1991, and expressed the opinion that Petitioner was still totally and permanently disabled. Dr. Morris also wrote Mr. Sadler a letter, dated June 16, 1992, expressing his opinion that Petitioner's condition was essentially unchanged from his previous indications. On July 7, 1992, Mr. Sadler informed Dr. Morris by telephone that it appeared that Petitioner had been gainfully employed as a longshoreman. Dr. Morris had not been aware of that employment and expressed the opinion to Mr. Sadler by telephone that Petitioner could teach if he could perform the duties of a longshoreman. On August 4, 1992, Respondent advised Petitioner in writing that it had determined that Petitioner was no longer entitled to disability retirement benefits. Petitioner contested that decision and requested a formal administrative hearing. This proceeding followed. Respondent thereafter took Petitioner's deposition to determine the extent of his employment as a longshoreman. In that deposition, Petitioner described his job activities and the hours he worked. Petitioner worked as a longshoreman on the docks throughout the time he was receiving disability retirement benefits. He was employed by different shipping companies in several different capacities. He worked as a porter handling luggage, he worked with a crew loading and unloading scrap iron, he worked with a crew loading foodstuffs on passenger ships, and he worked with a crew directing the operator of a gantry crane. He drove a fork lift and served as a supervisor of various crews, a position known as a "header." Prior to his own deposition, Dr. Morris reviewed Petitioner's deposition and became familiar with Petitioner's employment history since his disability retirement. Dr. Morris expressed the opinion that Petitioner was physically capable of performing the tasks required of a school teacher. Petitioner testified that he suffered from pain in his left ankle and leg as a result of the accident and that he has difficulty at times walking or standing. Petitioner was also concerned that he would be inattentive to his students at times because of his discomfort and because of the medication he takes to alleviate that discomfort and to control his diabetes, gout, and arthritis. Petitioner argues that his employment as a longshoreman does not establish that he is able to return to teaching and that he remains disabled. Petitioner presented no medical testimony to support his arguments. Based on Dr. Morris's testimony, Petitioner's arguments are rejected, and it is found that Petitioner is capable of returning to his employment as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of facts contained herein and which terminates Petitioner's disability retirement benefits. DONE AND ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of January, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-5434 The only post-hearing submittal filed by Petitioner was a letter and attachment thereto that contains argument, but not proposed factual findings. Those arguments are contrary to the conclusions reached herein and are rejected. The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Lewis B. Tunnage 450 North West 20th Avenue Fort Lauderdale, Florida 33311 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong, Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Prior to the hearing a short pre-hearing conference was held. It was stipulated to by the parties that Hadden was a member of the Florida Retirement System, had over 17 years of creditable service, and that Hadden could no longer perform the duties of an automotive mechanic because of his physical limitations. Hadden had applied for regular disability retirement benefits. The Division controverted Hadden's eligibility for such benefits on the basis that while Hadden could not perform the duties of an automotive mechanic that his physical condition did not prevent him from rendering useful and efficient service to the State in some other capacity calling for less strenuous activity.
Findings Of Fact Hadden is a white male, 51 years old, who worked as an automotive mechanic for Polk County for over 17 years. Hadden had had no formal schooling and can read and write very little. From Hadden's testimony and observations at the hearing regarding Identification of documents, it was apparent Hadden is functionally illiterate. Evidence was received that the former employer had indicated that there were no positions available for which Hadden was qualified. Hadden testified that he did do yard work at his home, mowing the lawn with a riding mower and weeding flower beds. However, Hadden indicated that if he became hot he would suffer pains in his chest and have to take his medication and lay down and rest for several hours. It appeared that even light physical work was beyond his capacity to perform on a regular continuing basis. Doctors' reports supporting Hadden's retirement application indicate that Hadden's physical condition will not improve and will probably worsen. Doctors restrict his activity to "mild" activity which is not strenuous or continuous. This would be consistent with Hadden's testimony regarding yard work. It should be noted that medical reports indicate that Hadden's heart condition is complicated by a nervous condition which restricts his ability to perform tedious manual work.
The Issue The issues in this case are whether Respondent terminated Petitioner due to race or handicap and, if so, the nature of the relief that she should be awarded. The parties agreed to reserve the issue of attorneys' fees for a later hearing, if necessary.
Findings Of Fact The parties have stipulated that Respondent is an "employer" and Petitioner is a "person," within the meaning of Section 760.02. Respondent is an African American female. Respondent employed Petitioner as a phlebotomist. She was hired on December 28, 1987, as a phlebotomist for International Clinical Laboratories, which was acquired by Respondent in 1988. While employed for Respondent and its predecessor, Petitioner worked at the main facility adjacent to Tallahassee Community Hospital. A phlebotomist collects blood and urine, supervises specimen collection, provides off-site service when needed, and completes associated paperwork. The job requires bending and stooping when collecting specimens and sometimes requires physically subduing combative patients. Petitioner took short-term disability leave from September 16 to October 16, 1991. Three months later, Petitioner injured her knee on January 12, 1992, when she bumped it into a cabinet at work. She took a couple of days off for this injury. On April 12, 1992, Petitioner injured her lower back while taking blood from an uncooperative patient. She sought treatment from Dr. Robbie G. Hansen, a chiropractic physician. Dr. Hansen gave Petitioner no orders concerning work, which she continued to attend, even though she was in pain. At the same time, Respondent was beginning to address some problems experienced by several phlebotomists, including Petitioner, in maintaining the chain of custody of specimens. Respondent's supervisors counselled several such employees, including Petitioner. On May 5, 1992, Deborah Glee, an African American female, counselled Petitioner orally for a mistake in the collection of a urine sample taken as part of a drug screen. On June 24, 1992, Dr. Harold Panzik, a white male who is the general manager of Respondent's facilities in northwest Florida, counselled three employees, including Petitioner, for mistakes in maintaining the chain of custody of urine samples. A week later, Ms. Glee counselled Petitioner for another chain-of- custody mistake. On July 15, 1992, Petitioner refused to perform a specimen collection for Tallahassee Community Hospital, Respondent's most important client. She caused a disruption in front of patients and coworkers. On the same day, Pete Lowhorne, a white male supervisor, issued Petitioner a written warning for an error in the collection of urine samples for drug screens. On August 3, 1992, Dr. Hansen advised Petitioner to discontinue working for a week in order to obtain relief from the pain from which she had been suffering. He intended to reevaluate her in a week to determine if her condition had improved. He wrote her a doctor's excuse from work for one or two weeks. Respondent placed Petitioner on short-term disability leave. Under Respondent's policy, as expressed in the employee handbook given to Petitioner previously, an employee begins short-term disability leave after five days' absence due to injury or illness. Short-term disability leave may extend up to 130 working days, at which time the employee becomes eligible for long-term disability leave. Long-term disability leave is then available. While on short-term disability leave, Petitioner received rehabilitation services from Maria Halpin, who was the rehabilitation counsellor for Respondent's workers' compensation carrier. Ms. Halpin scheduled medical examinations for Petitioner with Dr. Antolic and Dr. Bellamy. Dr. Hansen released Petitioner to return to work on August 19, 1992, with limited bending and stooping. Instead of returning to work, Petitioner sought treatment from Dr. Pierce Jones, an orthopedist. Dr. Jones first saw Petitioner on August 24, 1992, and he dismissed her on September 9, 1992, after determining that he could do nothing more for her. Petitioner then returned to Dr. Hansen, who referred her to Dr. Antolic, who, in November, advised Petitioner that she could return to work. Petitioner also saw Drs. Willis and Hoffman at the Spinal Testing and Strength Center. They excused her from work, but released her to return to work on November 11, 1992, provided that she not lift more than 25 pounds, engage in any prolonged bending, or work more than four hours per day for the first week. Ms. Halpin helped design a plan for Petitioner to return to work gradually. The schedule called for Petitioner to work two to four hours daily the first week, four hours daily the second week, six hours daily the third week, and, if able, eight hours daily the fourth week. For the first two weeks, Petitioner was to work in a less physically demanding position as a receptionist and then return to her job as a phlebotomist. Dr. Panzik created the receptionist job for Petitioner, who would thus have, during the first two weeks, only occasional phlebotomy duties. Before Ms. Halpin's plan was implemented, Petitioner returned to work as a phlebotomist on November 11, 1992. She worked parts of a couple of days that week. Petitioner returned to work under Ms. Halpin's plan on Monday, November 16. She found that she could not sit prolonged periods in the new position as receptionist. She worked a few days, but never more than two or three hours during a single day. Feeling unable to work in any position, Petitioner last worked for Respondent on November 27, 1992. On that day, she visited Dr. Hansen, who felt she could return to work and referred her to Dr. Antolic. On December 3, 1992, Petitioner returned to Dr. Antolic. Discovering Ms. Halpin with Dr. Antolic upon her arrival, Petitioner became angry, confronted both of them, and dismissed Ms. Halpin from her case. On that day, Dr. Antolic concluded that Petitioner just does not have enough objective findings to limit return back to work. I feel she is able to go back to light-duty work 4 hours per day until 01/01/93. At that time she should be able to tolerate full duties with limitations of no lifting greater than 25 pounds. I explained to her that she should be able to go back to light- duty work, but she became extremely unhappy, stood up and walked out of examining room saying "this is not why I came from Quincy." Unfortunately, it appears that I have nothing more to offer this lady and I will give her maximal medical improvement as of 01/01/93 with a 3.5 percent impairment as a whole person based on her present physical findings. The patient was not given an appointment for re-evaluation. At the same time, Petitioner was seeing her personal physician, Dr. Whiddon, for unrelated problems with her knee and blood pressure. Dr. Whiddon gave her an excuse from work for these problems for November 19 and 20, 1992, and January 1-11, 1993. This was the only doctor's order excusing Petitioner from significant periods of work that she possessed after her return to work in November. At the request of her attorney, Petitioner sought another opinion from Dr. Bellamy. On January 22, 1993, Dr. Bellamy found "[n]o abnormality found other than obesity. My suggestion is that she lose a lot of weight and exercise vigorously on a regular basis. I would expect her to continue to complain of pain." By the time of the last visit with Dr. Bellamy, Drs. Jones and Antolic had also dismissed Petitioner as a patient. After her unsuccessful return to work in November 1992, Petitioner's employment relationship with Respondent became attenuated. She did not supply her employer with doctors' excuses because most of the time she did not have any. She spoke to Dr. Panzik's assistant two times and possibly to Dr. Panzik, but neither of them assured Petitioner that she could return to her job. In January, Petitioner called Mr. Lowhorne and promised him a doctor's excuse for her knee. He referred her to Dr. Panzik's assistant, with whom Petitioner discussed the possibility of more sick pay for the new year. When the assistant told Petitioner that she was ineligible for more sick pay, Petitioner asked about resigning in order to obtain the balance of a profit-sharing account. After thinking about the option, Petitioner told the assistant that she would not resign until she had spoken to her attorney. In January, Brenda Oxley, Respondent's human resources supervisor located in Tampa, discovered that Petitioner had not returned to work after being released to do so. Unaware that Petitioner had not remained at work following her short-lived return in November, Ms. Oxley contacted Dr. Panzik and the workers' compensation carrier and learned of the upcoming January 22 appointment with Dr. Bellamy. Following receipt of Dr. Bellamy's report, Ms. Oxley and Dr. Panzik decided to terminate Petitioner. The employee manual states: for employees who have medical limitations which prohibit them from performing their normal job, an attempt will be made to provide a temporary work assignment suitable to these medical restrictions [and i]f you decline a temporary work assignment, it will be considered a voluntary termination of employment. The manual elsewhere adds: refusal to cooperate in training, rehabilitation, temporary work assignment or placement efforts, when offered will result in disqualification for disability benefits and the employee will be considered to have voluntarily resigned employment effective the last day for which [short-term disability] benefits were approved. By letter dated January 27, 1993, Ms. Oxley informed Petitioner that she was terminated effective February 1, 1993, unless she could produce more information from a doctor by February 1. Petitioner received the letter on February 1, but did not provide such information to Ms. Oxley, Dr. Panzik, or anyone else at Respondent's offices. As of February 1, 1993, Petitioner remained unable or unwilling to return to work as a phlebotomist or any other available assignment. After that date, Dr. Panzik hired Petitioner's temporary replacement, a white female, as a permanent employee. Doubtlessly, Ms. Oxley was not always aware of developments concerning Petitioner after her unsuccessful return to work in November. It is unclear exactly when Petitioner came off short-term disability leave, and it is likely that Ms. Oxley and Dr. Panzik did not come to a common understanding on this point until they spoke after receiving Dr. Bellamy's final report. It is clear, however, that several doctors saw Petitioner, and they all dismissed her and released her to return to work. It is also clear that Petitioner did not return to work, except for a short time in November. These factors, coupled with repeated performance counselling of Petitioner by an African American female supervisor, tend to preclude a finding of discrimination based on race or handicap, even if Petitioner's termination were deemed involuntary. The time had come for Petitioner to return to work or, if unable, pursue other legal remedies available to all other employees claiming to be injured on the job or wrongfully deprived of contractual disability benefits. Petitioner cites two factors as evidence of discrimination. The first is the handling of another employee, Deborah Tinter, a white female, who was allowed to take short term disability. Petitioner used Ms. Tinter for a dual purpose. In addition to being offered as an additional victim of discrimination due to disability, Ms. Tinter was offered as the beneficiary of racial discrimination. Counsel chose not to disclose the nature of Ms. Tinter's afflictions or injuries, except for a minor injury. This appeared to be a commendable attempt to spare the witness embarrassment. However, as the hearing officer warned during the hearing, it is difficult to compare the treatment given Petitioner and Ms. Tinter by Respondent without understanding the natures of their disabilities. But, regardless of the nature of Ms. Tinter's disability, there is no evidence in the record to suggest that the disabilities and impairments arising from Ms. Tinter's afflictions or injuries were in dispute. In this important respect, Ms. Tinter's situation differed from Petitioner's situation and merited different treatment by Respondent. Petitioner also attempted to show that other African American employees were subjected to racial discrimination by Respondent. Several such employees testified that they were victims of racial discrimination. Necessarily, the evidence of discrimination concerning several other employees was summary. It is possible that one or more of these persons in fact have been victims of racial discrimination. However, based on the abbreviated records presented on each such person, Petitioner did not prove that these persons were victims of race discrimination by Respondent. Sometimes, the alleged facts did not establish prima facie racial discrimination. In each case, based on the testimony of the alleged victim, it is at least as likely as not that legitimate, nondiscriminatory reasons existed for the complained-of acts or omissions.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on May 24, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 24, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 6-7: rejected as subordinate. 8-9: adopted or adopted in substance. 10-12: rejected as subordinate, except that Dr. Jones saw Petitioner and later dismissed her. 13: adopted or adopted in substance. 14: rejected as subordinate. 15-17: adopted or adopted in substance. 18: rejected as subordinate. 19-21: adopted or adopted in substance. 22: rejected as unsupported by the appropriate weight of the evidence. 23: adopted or adopted in substance. 24-25: rejected as recitation of evidence. 26: adopted or adopted in substance, but not for the continuous period in question. 27 (first sentence): rejected as irrelevant. 27 (remainder): rejected as unsupported by the appropriate weight of the evidence. 28: rejected as unsupported by the appropriate weight of the evidence, except for last sentence, which is adopted or adopted in substance. 29-30: adopted or adopted in substance. 31 (first sentence): adopted or adopted in substance. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence. 33: adopted or adopted in substance. 34: rejected as unsupported by the appropriate weight of the evidence, except for learning that her short term disability did not recommence in the new year. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37: rejected as subordinate. 38: rejected as irrelevant. 39: rejected as unsupported by the appropriate weight of the evidence. 40-46 (first two sentences): rejected as irrelevant. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 47 (second sentence): rejected as irrelevant. 48: adopted or adopted in substance. 49-53: rejected as irrelevant. 54: adopted or adopted in substance. 55-57: rejected as irrelevant. 58: rejected as repetitious. 59-60: rejected as subordinate. 61-62: rejected as unsupported by the appropriate weight of the evidence. 63-64: rejected as unnecessary. 65-66: rejected as irrelevant. 67-70: adopted or adopted in substance. 71-82: rejected as irrelevant. 83: rejected as subordinate. 84: adopted or adopted in substance. 85-92: rejected as irrelevant. 93: adopted or adopted in substance. 94: rejected as subordinate. 95-110: rejected as subordinate, unsupported by the appropriate weight of the evidence, and recitation of testimony. 111 (first sentence): rejected as irrelevant. 111 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 112: rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-25: adopted or adopted in substance. 26: rejected as subordinate. 27-31: adopted or adopted in substance. 32: rejected as recitation of evidence. 33: rejected as subordinate. 34-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-43: adopted or adopted in substance. 44-45: rejected as irrelevant. 46: adopted or adopted in substance. 47-50: rejected as irrelevant. 51: adopted or adopted in substance. 52-67: rejected as recitation of evidence and subordinate 68: adopted or adopted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Marie A. Mattox Marie A. Mattox, P.A. 1333 North Adams Street Tallahassee, FL 32303 John P. McAdams Carlton Fields P.O. Box 3239 Tampa, FL 33601
The Issue The central issue for determination is whether the Petitioner is entitled to retirement benefits which she claims as surviving spouse. Although she does not provide evidence that her husband earned sufficient creditable service to vest in the system, Petitioner claims entitlement based on two alternate theories: that approximately 480 hours of sick leave accrued at the time of her husband's death should be added to his creditable service to meet the ten-year requirement; and her husband should have been eligible for disability retirement prior to his death, but was prevented by his employer from making a timely application.
Findings Of Fact Robert L. Carruthers was a member of the Florida Retirement System (FRS) at the time of his death on May 26, 1988. His membership commenced on September 13, 1979, when he was employed by the Brevard County District School Board. On June 30, 1980, he transferred to the Orange County District School Board and remained in that employment until his death. Joy Ruth Carruthers is the surviving spouse of Robert L. Carruthers. During his employment with the two school boards, Mr. Carruthers earned 8.75 years of creditable service in the FRS. Mrs. Carruthers is unaware of any other employment which might be credited as service. The Division of Retirement has no information of other employment which might be credited as service in the FRS. As the result of a complaint by Carol Stearns, the mother of Joy Carruthers, Robert Carruthers was placed on "relief of duty, with full pay and benefits" as of February 18, 1988, by the Orange County School Board. Prior to that time he had worked as an ROTC instructor at Evans High school. He was on the "relief" status at the time of his death. Sometime in late February 1988, Robert Carruthers became paralyzed from the waist down, and could not walk, as the result of a progressive illness. He had formerly walked with a cane. He had worked at the school up through the day he was given his "relief from duty" papers. Mrs. Carruthers claims that when he was placed on relief status, her husband was forbidden to go anywhere near the school or school board offices and was thus prevented from filing an application for retirement disability benefits. No witness substantiated that claim, and the letter from Dennis Reussow, Assistant to the Superintendent for Employee Relations and Administrative Services, to Mr. Carruthers states, ". . . . During this time you are directed to remain away from the Evans High School campus and to avoid contact with students assigned to the school. . . ." (Petitioner's exhibit #4.) This prohibition appears to be limited to the school and would not include the administrative offices. In early May the school board received a statement from Robert Carruthers' doctor that he would not be able to return to work indefinitely. Shortly thereafter, John B. Hawco, the Orange County School Board Administrator for Employee Relations, went to Carruthers' home with insurance forms. They were able to communicate and Carruthers signed some forms. It is not clear from the record whether a disability retirement application was completed on that occasion, but at some point a scribbled, illegible signature for Robert Carruthers was obtained on an FRS application for disability retirement. The application is dated May 25, 1988. The employer's statement of disability attached to the application was completed by John B. Hawco on May 26, 1988. When he completed the form, John Hawco did not know that Robert Carruthers had died the same day. The application form was date-stamped at the Division of Retirement on May 31, 1988. The employer's statement of disability is stamped June 6, 1988. (Petitioner's composite exhibit #3.)
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter its Final Order denying Petitioner's request for benefits. DONE and ORDERED this 28th day of June, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989. COPIES FURNISHED: Joy R. Carruthers Post Office Box 680-151 Orlando, Florida 32858 Stanley M. Danek, Esquire Office of General Counsel 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
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
