Findings Of Fact On July 9, 1986 Petitioner, a Clerk Typist Specialist employed by the Department of Health and Rehabilitative Services, signed a receipt acknowledging that she had received a copy of the Department's Employee Handbook which contains the information that an employee who is absent for three consecutive workdays without authorization may be considered to have abandoned his or her position and thereby to have resigned. On September 3, 1987 Petitioner telephoned her supervisor to advise him that she had an interview scheduled and that she would be at work by 9:30 a.m. She, however, thereafter failed to appear at work and failed to make any further contact with her supervisor on September 3, 4, 8, 9, 10, and 11, 1987. On September 11, 1987 by certified letter the Department advised Petitioner that, as of the close of business on September 9, she was deemed to have abandoned her position and to have resigned from the Career Service due to her unauthorized absence for three consecutive workdays, i.e., September 3, 4, and 8, 1987.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is, RECOMMENDED that a Final Order be entered deeming Petitioner to have abandoned her position and to have resigned from the Career Service. DONE AND ORDERED this 30th day of November, 1987, in Tallahassee, Florida. LINDA M. RIGOT 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 30th day of November, 1987. COPIES FURNISHED: Ruby Holloway-Jenkins 649 West 4th Street Riviera Beach, Florida 33404 K. C. Collette, Esquire District IX Legal Counsel 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact William Marcum is a career service employee with appeal rights to the Career Service Commission. In April, 1977, Marcum received a written reprimand from his supervisor, Alphonso Crowell, for being asleep on the job. On July 19, 1977, Alphonso Crowell observed Marcum, who was on duty in the dormitory of the Okeechobee School for Boys, from outside the dormitory through a large window. Crowell observed Marcum seated at his desk with his head leaning against the wall. Crowell could not see Marcum's face, but Marcum did not move for approximately twenty (20) minutes during which time Crowell observed him. Crowell directed Mr. George LaGrange, Marcum's direct supervisor, to relieve Marcum immediately. This incident resulted in counseling by the superintendent of the school, who determined that Marcum was suffering from arthritis and taking aspirin for this problem. Marcum was counseled but no disciplinary action was taken because he had been taking medication and was scheduled to be hospitalized. On August 15, 1977, Marcum returned to work having been pronounced fit for duty by his doctor and the agency's doctor. On August 17, 1977, George LaGrange walked into the dormitory to which Marcum was assigned at approximately 4 A.M. and approached Marcum from the right rear. LaGrange, wearing boots, walked to within six (6) feet of Marcum and observed Marcum for about five (5) minutes. Marcum was slumped forward in his seat and did not move during this period. LaGrange then spoke to Marcum and Marcum immediately returned and replied to LaGrange. Marcum denies that he was asleep on either occasion, but asserts that he was absorbed in thought about his personal affairs. Marcum pointed out that neither Crowell nor LaGrange observed his face and therefore could not tell whether he was asleep. Marcum's duties were direct custodial supervision of the children in the dormitory to which he was assigned.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends to the Career Service Commission that they sustain the disciplinary action taken by the agency against William Marcum. DONE and ORDERED this 28th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1978. COPIES FURNISHED: William Marcum Route 3, Box 3575 Okeechobee, Florida 33472 K. C. Collette, Esquire 1665 Palm Beach Lakes Boulevard Suite 800 West Palm Beach, Florida 33401 Dorothy Roberts, Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304 Art Adams, Director Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue What amount of legal fees and costs should be awarded to Petitioner pursuant to Section 120.569(2)(e) or 57.105(5), Florida Statutes, for Respondent’s erroneous classification of Petitioner’s position and subsequent failure to correct that error and reclassify Petitioner’s position back to career service as requested by her in Georgalis v. F.D.O.T., DOAH Case No. 03-4665SED.
Findings Of Fact On April 1, 2002, Petitioner was discharged from her position with the Department without stated cause or hearing. See Petitioner’s Ex. 1-2, Dep’t of Transportation v. FCHR, 842 So. 2d 253, 256 (Fla. 1st DCA 2003). On June 11, 2003, Petitioner was temporarily reinstated by order of the Circuit Court to her position with the Department pursuant to section 112.3187(9)(f). Petitioner’s Ex. 1-3. The administrative case underlying this request for fees and costs was initiated by Petitioner through the filing of a Petition for Formal Administrative Hearing on August 15, 2002. Petitioner’s Ex. 1-4. In that Petition, Petitioner demonstrated, through reference to the position description provided to her by the Department, that she did not fit within any of the categories of employees exempted from career service by Section 110.205(2)(x), Florida Statutes. Petitioner’s Ex. 1-4, paragraph 7. Petitioner also put the Department on notice that she believed the Department’s action in reclassifying her was “frivolous and was done for an improper purpose,” since it was contradicted by the Department’s own documents. Petitioner’s Ex. 1-4, paragraph 12. She also requested that she be awarded appropriate attorneys’ fees and costs. Id. After nearly four months, the Department forwarded the Petition to the Division of Administrative Hearings for a formal administrative hearing regarding whether its decision to reclassify Petitioner was proper. Petitioner’s Ex. 1-5. By this letter, which was filed with the Division of Administrative Hearings on December 10, 2003, the Department requested a formal administrative hearing and manifested its opposition to the relief requested by Petitioner in her Petition. A hearing was held in DOAH Case No. 03-4665SED on April 15, 2004. Following the preparation of a transcript, the parties submitted Proposed Recommended Orders. Petitioner filed a Motion to Strike portions of the Department’s Proposed Recommended Order because it improperly raised an argument that Petitioner could properly be exempted from career service because she was an “administrator.” Petitioner’s Ex. 1-6. That Motion was granted. Petitioner’s Ex. 1-7.1/ On July 2, 2004, the undersigned entered a Recommended Order concluding that Petitioner was improperly reclassified into Select Exempt Service. Petitioner’s Ex. 1-8, p. 12. On September 1, 2005, the Department entered a Final Order adopting the Recommended Order entered in DOAH Case No. 03-4665SED.2/ Petitioner’s Ex. 1-11. Paragraph 13 of the fully-adopted Recommended Order states that: based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001. Petitioner’s Ex. 1-8, paragraph 13. In paragraph 19 of the fully-adopted Recommended Order, the undersigned concluded that: [t]he suggestion of the Respondent’s witness that the exemption should apply if a state employee is assigned to work with anyone retained or commissioned by Respondent to perform services for Respondent, however menial the task, simply misconstrues the statutory exemption: the relevant issue for the purposes of the exemption is whether such persons are department “employees,” not whether a department has contracted or engaged their services as independent technical consultants. Such contract administration is not relevant to the issue of whether Petitioner could properly be classified as a selected exempt employee. Petitioner’s Ex. 1-8, paragraph 19. Following entry of the Recommended Order, Petitioner filed her two (2) Motions for Attorneys’ Fees. Petitioner’s Ex. 1-12 and 1-13. These motions seek an award of attorney’s fees and costs based on the lack of factual or legal support for the Department’s opposition to Petitioner’s request that the Department correct its error in reclassifying her position to Select Exempt Service. Id. Petitioner submitted an affidavit and itemized statement of the requested hours, a summary of hours by the attorney, and a summary of costs incurred in this matter. Petitioner’s Ex. 1-14. Petitioner also submitted the testimony of J. Steven Menton, Esquire, who corroborated the reasonableness of the services and time expended by Petitioner’s counsel and also confirmed the reasonableness of the fees charged and costs incurred by Petitioner’s counsel for those services. The Department did not contest the number of hours sought by Petitioner’s counsel. Respondent did offer the testimony of Michael Mattimore, Esquire, who was also counsel of record for the Department in this case, suggesting that the rates charged by Petitioner’s counsel exceeded those which are normally charged by similar attorneys in the community. Mattimore’s testimony related to fees charged in “employment” law cases in which he has been involved during his career and did not focus on administrative litigation challenging the actions of a governmental agency, such as the present case which involved more than merely examining the factual circumstances surrounding a discharge or other adverse employment action. Confirming the complexity of the underlying case was Mattimore’s testimony regarding the outcome in other reclassification cases. The great majority of reclassification challenges (more than 95 percent of them) have been resolved in favor of the governmental agency or have not been pursued by the impacted employee. Id. The outcome obtained by attorneys for Petitioner in the underlying case is suggestive of fees toward the high end of the range. Petitioner reported the following hours and rates (Petitioner’s Ex. 1-14): LAWYERS: Hours Rate Amount M. Stephen Turner, P.A. 44.40 $400 $17,760.00 David K. Miller, P. A. 1.00 $300 $ 300.00 Martin A. Fitzpatrick 228.50 $250 $57,125.00 Brooke Lewis .90 $200 $ 80.00 TOTAL ATTORNEY HOURS 274.80 $75,365.00 Paralegals: Theresa J. Everhart Hours 1.90 Rate $80 Amount $152.00 Trishia Finkey 1.00 $80 80.00 TOTAL PARALEGAL HOURS 2.90 $ 232.00 TOTAL LEGAL FEES: $75.597.00 The hours and rates requested are found to be reasonable in view of the novelty and complexity of the issues, level of legal skills required, and the result obtained for the Petitioner. The rates sought are in line with fees charged by similarly-situated attorneys for similar work in the community. The amount requested is reasonable and justified under the circumstances. Moreover, the costs and expenses for which reimbursement is sought ($1,523.25) and the expert witness fees of $1400 ($280 /hour for 5 hours) are also reasonable and are of a kind typically billed to clients in addition to the hourly rate charged.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 9, 2011.
Findings Of Fact Petitioner commenced her employment with Respondent in November 1997. On December 9, 2010, Petitioner ceased being employed by Respondent. In her Charge of Discrimination, Petitioner alleges that Respondent discriminated against her on the basis of "disability" and "retaliation." Exhibit A to the Charge of Discrimination provides as follows: I was employed with Orange County Clerk of Courts since November 1997. During my tenure with Orange County Clerk of Courts, I served as a Supervisor and satisfactorily and/or above satisfactorily performed the essential job duties of my position. Notwithstanding my performance, I was subjected to discrimination based on my handicap and/or disability, as further described below. In 1999 I injured my back while on the job and in 2003 I had surgery for same. I had 2 rods and 4 screws placed in my back. On September 27, 2010, I was on FMLA leave until December 8, 2010, and I requested an extension until December 27, 2010, but it was denied. While out on FMLA leave I had the rods removed from my back, which is why I was not able to return to work on December 9, 2010. The reason I was out of work all this time was a direct result from the workers compensation injury I sustained in 1999. Many of my colleagues that were unable to report to work were provided the opportunity to work from home, however I was not. I feel that I was targeted for termination even though such non-handicapped and/or disabled employee was not subject to any adverse employment action. Based on the foregoing actions of Orange County Clerk of Courts described herein, I believe that I have been discriminated and retaliated against, including my unlawful termination, based on my handicap and/or disability in violation of the Florida Civil Rights Act of 1992 and Title VII of the Civil Rights Act. Due to my unlawful termination, I have suffered and continue to suffer severe financial and emotional damages. I am seeking compensation for my lost earnings, my lost earnings capacity, my emotional distress, and for punitive damages because Orange County Clerk of Courts acted with malice and/or reckless disregard for my protected rights. Following the "no cause" determination by FCHR, Petitioner requested an administrative hearing by filing a Petition for Relief. In her Petition for Relief, Petitioner, when directed to describe the "disputed issues of material fact," noted the following: "Respondent states Complainant abandoned her position. Complainant had vacation time not used on company's books – other employees have/were granted extension of time off – they had no time accrued on books." Petitioner was employed by Respondent as a supervisor in the Division of Records Management. In her role as supervisor, Petitioner, among other duties, was responsible for supervising "a records tech one, two, and three" as well as the person that occupied the position designated as the team "lead." Petitioner's job description lists the following as essential duties and responsibilities of her position: Perform any or all of the duties described below depending upon the Division to which assigned. The omission of specific statements of duties does not exclude them from the position if the work is similar, related, or a logical assignment to the position. Assign, schedule, review and evaluate the work of subordinates. Assist in various areas of personnel administration to include preparation of employee performance evaluation, conduct of employee action plans, and employee counseling/discipline. Monitor customer assistance to include service counter/courtroom coverage, and provide assistance when appropriate. Coordinate divisional orientation and oversee the training of new employees. Provide ongoing divisional training program to include efficient use of a variety of court software, case tracking, and other computer systems. Maintain time and attendance records and related reports for divisional personnel. Review/approve employee leave requests. Respond to complaints, difficult situations and non-routine inquiries from the public in a professional and timely manner. Resolve problems and answers questions that subordinates are unable to solve. Provide assistance to judicial assistants, judges, and other court personnel. Verify that documents processed through the front counter are distributed properly and in a timely manner. Assist in collecting/analyzing data and prepare associated reports. Inform management of any problems or issues. Establish/maintain effective intra-divisional working relationships where areas of responsibility are shared among divisions. Close out and balance the register when required. Complete end of day audit per Clerk's Cash Control Policy as necessary. Communicate with coworkers, management, staff, the general public, and others in a timely, courteous and professional manner. Conform with and abide by all regulations, policies, work procedures and instructions. Respond promptly when returning telephone calls and replying to correspondence including email and faxes/emails. Act, dress, and behave in a professional manner to reflect a positive image of the Clerk's Office. Fully support the Clerk's Quality Policy and standards of Performance Excellence by delivering exemplary services to both internal and external customers. Provide the utmost in customer service efficiently, effectively, and expeditiously. Develop, implement, and provide tools necessary for staff to collect accurate and useable data for the Performance/Productivity Measurement System (MOS). Utilize available tools to collect necessary information and report daily/weekly Performance/Productivity Measurement System (MOS) data to the Assistant Manager. Perform observations, calculations, and implementation of forms necessary for the Performance/Productivity Measurement System (MOS). Monitor process changes in order to evaluate Performance/Productivity Measurement System (MOS) measurements accordingly. Report these findings to the management team and Special Projects Coordinator for appropriate action. Assist in the preparation and update of the Performance/Productivity Measurement System (MOS) Area Books for the division. Continuously strive to instill Performance Excellence in all functions within the Division through teamwork, customer feedback, and process based management. Throughout her tenure as a supervisor, Petitioner generally received "acceptable" ratings (highest ratings possible) on her annual employee performance appraisals. On June 1, 2009, Petitioner's supervisor, Cindy Startz, noted that Petitioner was viewed as a "great asset" to the office of the Orange County Clerk of Courts. In 1999, Petitioner sustained a work related injury to her back. In reviewing the record, it appears as though Petitioner, sometime in 2003, had surgical rods inserted in her back in order to stabilize her spine. The rods were surgically removed from Petitioner's back on or about December 9, 2010. Prior to her December 2010 back surgery, Petitioner, from August 3, 2010, through August 17, 2010, used two weeks of Family Medical Leave Act (FMLA) leave to care for her child. Petitioner's FMLA leave year for the period in question commenced on August 3, 2010. Therefore, for the twelve month period beginning August 3, 2010, Petitioner had twelve weeks of FMLA leave or a maximum of 480 working hours available for use. On or about October 4, 2010, Petitioner submitted to Respondent another request for FMLA leave. This request from Petitioner was for the period September 27, 2010, through October 27, 2010. Petitioner's FMLA leave request for this period was approved by Respondent on November 2, 2010. Petitioner did not return to work on October 28, 2010. She sought and was granted by Respondent a continuation of her FMLA leave through and including December 8, 2010. As of December 8, 2010, Petitioner had exhausted her 12 weeks of FMLA leave for the annual leave period that commenced on August 3, 2010. Several days prior to exhausting her FMLA leave, Petitioner was informed by Respondent that her FMLA leave entitlement for the relevant period would expire on December 8, 2010. In anticipation of the expiration of her FMLA leave entitlement, Petitioner, on or about December 2, 2010, submitted to Respondent a request for leave of absence without pay for the period December 9, 2010, through December 27, 2010. In support of her request for leave of absence, Petitioner provided to Respondent a statement from her orthopedist. According to her orthopedist, Petitioner suffered from chronic low back pain and was "having surgery on 12/9/10 for hardware removal [from her back, and that] [s]he will be out of work from 12/9/10 – 12/27/10, and [these] dates may be adjusted as needed pending [patient] recovery." The orthopedist also noted that for the two to three month period following her surgery, it was anticipated that Petitioner would experience one or two "flare-ups" with her back that would require orthopedic intervention. On December 8, 2010, Petitioner's supervisor, Marlene Muscatello, sent Petitioner an email message regarding Petitioner's request for a leave of absence without pay. The email message provides as follows: Hello Sandra, I received your leave of absence request for December 9 through December 27th. Your request has been reviewed and considered. However, the Records Management division is unable to accommodate your leave of absence request due to the workload burden on the division. Thank you, Marlene On September 6, 2010, Marlene Muscatello became Petitioner's supervisor and division manager for Respondent's Records Management Division. Ms. Muscatello, when considering Petitioner's request for leave of absence, was familiar with the needs of the Records Management Division. In explaining why Petitioner's request for leave of absence was denied, Ms. Muscatello credibly testified that as a result of Petitioner's absence, it was necessary to reassign Petitioner's responsibilities to other employees in the Records Management Division. The employees that were tasked with Petitioner's work functions were required to perform Petitioner's job functions as well as their own. According to Ms. Muscatello, this working arrangement created a hardship on the employees in the Records Management Division. Petitioner disputes that her absence from the office during her FMLA leave period created a hardship on her fellow employees. According to Petitioner, her absence from the office allowed the person serving in the position of tech-three, "to jump in and learn more." Ms. Muscatello generally agrees that Petitioner's absence provided learning opportunities for other employees. However, Ms. Muscatello also notes that while the other employees in the division were taking on new responsibilities associated with Petitioner's absence, the employees were still responsible for performing their regular duties. In addition to the hardship placed on other employees resulting from Petitioner's absence, Ms. Muscatello was also concerned about the uncertainty surrounding when Petitioner would be released by her physician to return to work. Specifically, Ms. Muscatello was concerned about that portion of the physician's statement indicating that December 27, 2010, was only an anticipated release to return to work date and that Petitioner's actual return to work date "may be adjusted as needed pending [patient] recovery." Petitioner contends that because the doctor's statement is "open ended," it was possible that Petitioner could have been released to return to work prior to December 27, 2010. It is precisely the "open ended" nature of the doctor's statement that factored into Ms. Muscatello's decision to deny Petitioner's request for leave without pay. It is clear from the doctor's statement that Petitioner was unable to perform her job duties upon exhaustion of her FMLA leave. In addition to the previously referenced email, Respondent also sent on December 8, 2010, correspondence to Petitioner wherein she was advised of the following: This is to advise you that as of December 8, 2010, your 12 weeks of leave under the federal Family and Medical Leave Act is exhausted. The State of Florida does not mandate any additional leave rights beyond the federally mandated FMLA and all of your accrued sick and vacation leave has been exhausted. In accordance with our FMLA policy and as is permitted by FMLA regulations, we require all employees on leave to provide notice of their intent to return to work and if returning, a note from their medical provider returning them to their job. The documentation you provided on December 2, 2010, from your physician states that you need to be out of work from December 9th through December 27th. As outlined in the Clerk of Courts Employee Handbook, Section 408, you submitted a request to your division management for a Leave of Absence beyond your FMLA eligibility. Unfortunately your division is unable to approve your request at this time. Clerk of Courts policy states that if you do not return to work following the exhaustion of your FMLA, you will be considered to have voluntarily resigned. When you are released by your physician to return to work, you may apply for available employment opportunities with the Clerk of Courts. We appreciate your service to the Orange County Clerk of Courts and certainly wish you well in the future. If you have any questions you may reach me at 407-836-2302. Information regarding your rights to continue your employee benefits under COBRA will be sent to you separately. Please contact our office to arrange the return of any property belonging to the Clerk of Courts still in your possession (employee ID badge, parking card, keys, etc.) Sincerely, Jacquelyn Clarke, SPHR Sr. Human Resource Generalist In her Charge of Discrimination, Petitioner alleges that "[m]any of her colleagues that were unable to report to work were provided the opportunity to work from home, however I was not." The evidence is undisputed that Petitioner never requested of Respondent that she be allowed to work from home. It is illogical to suggest that Respondent discriminated against Petitioner by not allowing her to work from home when Petitioner never asked for such an accommodation. There was no evidence presented that other employees were allowed to work from home under circumstances where this option was unilaterally presented to the employees as a proposed accommodation. As previously noted, Petitioner, in her Petition for Relief, alleges that Respondent discriminated against her by not allowing her to use her accrued vacation leave upon exhaustion of her FMLA leave. In comparing the Petition for Relief with the Charge of Discrimination filed by Petitioner, it is the case that Petitioner did not make any reference, express or implied, to unused vacation time in the Charge of Discrimination that was investigated by FCHR. The undersigned has only considered those issues raised in the Charge of Discrimination. During Petitioner's employment with Respondent, the position that she occupied was covered by the Orange County Clerk of Courts Employee Handbook (Handbook). Section 409(E) of the Handbook provides, in part, that "[i]f the employee does not return to work following the conclusion of a family or medical leave, the employee will be considered to have voluntarily resigned." Petitioner signed for and received a copy of the Handbook on February 22, 2000. Section 408 of the Handbook governs requests for leave of absence without pay. This section provides in part that "[l]eave of absence without pay may be granted with manager's approval to eligible employees in instances where unusual or unavoidable circumstances require prolonged absence."
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 Respondent, Orange County Clerk of Courts, did not commit an unlawful employment practice as alleged by Petitioner, Sandra A. Jones, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 27th day of June, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 June, 2013.
The Issue The issue in this case is whether Respondent properly reclassified Petitioner's employment position from Career Service status to Selected Exempt Service status.
Findings Of Fact In 2001, the Florida Legislature enacted a substantial revision to Florida's civil service system commonly referred to as the "Service First" initiative. See Ch. 2001-43, Laws of Fla. Among the significant changes, the revision redefined the parameters of the Selected Exempt Service classification for public employees. In essence, the Selected Exempt Service classification was expanded to include most of the supervisory level employee classifications which had previously been identified as part of the Career Service classification. The statutory changes brought about by the Service First initiative became effective on May 14, 2001. Id. at 15. Petitioner was employed under the Career Service classification by the Department of Children and Family Services since 1990, and served as a Public Assistance Specialist Supervisor, position number 64817, in the Suncoast Region. In light of Section 110.25(2)(x), Florida Statutes (2003), Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2003. Petitioner's Career Service position description remained unchanged when it was reclassified to Select Exempt Service status. The position description specifically identifies supervisory responsibilities and states: Duties and Responsibilities: This is a professional position primarily responsible for the supervision of a public assistance unit for determining the initial and ongoing eligibility of applicants for programs such as Food Stamps, Medicaid, ICP, OSS, Waiver, etc. More specifically, pursuant to the written position description, the Public Assistance Specialist Supervisor is required to "supervise the appointment and case management system" to ensure that subordinates are correctly processing applications. The position is responsible for evaluating all scheduled work and appropriately reassigning work. In addition, pursuant to the position description, the supervisor shall analyze work reports provided by subordinate employees, educate staff, schedule case reviews with supervised employees, and conduct monthly conferences with each employee. The supervisor is obligated to review their performance, identify their strengths and weaknesses, and provide supervisory assistance in achieving acceptable standards. The supervisor is required to prepare written evaluations, conduct staff meetings, and develop in-service training for under achieving employees. Petitioner's actual duties and work-load were consistent with the written position description. Petitioner interviewed applicants and recommended candidates for job vacancies in his area. He supervised subordinates, recommended and levied appropriate corrective action, and organized and distributed work. Petitioner set organizational goals, motivated employees, trained and developed their technical skills, resolved employee problems, and implemented performance and quality control standards. Petitioner was responsible for ensuring that the staff assigned to him maintained at least a 90 percent accuracy rate on case reviews processed and a 96 percent processing rate on unit assigned client applications. Petitioner admits that his supervisory duties consumed most of his time. He acknowledges that client interviews were not part of his normal duties and concedes that he regularly supervised employees, provided feedback to employees, and performed evaluations. In addition, he agrees that his recommendations regarding discipline were usually followed. Petitioner routinely led staff meetings with his subordinates and frequently met with them individually. He controlled work-flow and made changes as he deemed appropriate within his department. Petitioner admits that he functioned as the supervisor in an area that was distinct and separate from the other units. The evidence presented at hearing establishes that Petitioner's written and actual duties were supervisory in nature, and he spent the majority of his time performing those duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order approving Petitioner's reclassification. DONE AND ENTERED this 31st 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 31st day of March, 2004. COPIES FURNISHED: Joseph A. Conley, Jr. 8511 Sunflower Lane Bayonet Point, Florida 34667 Jennifer Lima-Smith, Esquire Department of Children and Family Services 9393 Florida Avenue, Room 902 Tampa, Florida 33612-7236 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Charles C. Burlingame's request to purchase and upgrade prior regular service with the City of Panama City under the Senior Management Service Class should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this retirement dispute, Petitioner, Charles C. Burlingame (Burlingame), seeks to have certain prior service with Petitioner, City of Panama City (City), upgraded under the Senior Management Service Class (SMSC) so that his retirement benefits will vest at an earlier date. Respondent, Department of Management Services, Division of Retirement (Division), has denied the request on the ground that "the duties of [Burlingame's former] position were different from the duties of [his] current position," and that under these circumstances, Section 121.055(1)(i), Florida Statutes (1997), required that the request be denied. Burlingame was first hired by the City on February 14, 1994, as Human Resources Director/Safety. As such, he was one of approximately 16 City department directors. At that time, Burlingame was enrolled in the "regular" class of the Florida Retirement System (FRS). In 1998, the Legislature authorized local governments (as well as state agencies) who employed at least 200 individuals to designate an additional employee under the SMSC. Because the City employed that number of individuals, it was allowed to designate another employee for SMSC. Burlingame was selected as the employee, and he was promoted to a new position with the title Assistant City Manager/Human Resources/Safety Director. At the same time, his old position was abolished. In conjunction with his promotion, Burlingame prepared a job description for his new position. The old and new duties are described in the documents attached to Respondent's Exhibit 2. They reflect, at least on paper, that the functions and illustrative duties of the two positions are not identical. For example, in his new position, Burlingame is now in charge when the City Manager is absent from the City. He also assists the City Manager "in directing the overall operations of the City," as well as performing his former duties. According to Burlingame, however, these new duties account for no more than five percent of his total duties. The remainder coincide with the duties performed under his old position. Under the terms of the City's retirement system, the retirement benefits for a SMSC employee vest after 7 years of service, while a regular employee does not vest until after 10 years of service. Therefore, Burlingame wished to upgrade his prior service between February 14, 1994, and September 29, 1998, when he was changed to SMSC, since this would allow him to vest in fewer years. It would also allow him to accumulate more retirement points (2 per year) under the FRS for each year of service than he would have earned as a regular employee (1.6 per year). When Burlingame was approved for membership in the SMSC in October 1998, the City began processing an application with the Division on his behalf for the purpose of determining the "cost to upgrade past service to [SMSC] to 2-14-94." Because of a large backlog of work caused by Deferred Retirement Option Program applications, the Division was unable to act on Burlingame's request until the early fall of 1999. After the City made several inquiries concerning its pending request, a Division Benefits Administrator, David W. Ragsdale, wrote the City on September 15, 1999, and advised that "[s]ince the position Mr. Burlingame filled as Human Resources/Safety Director had different duties than the Assistant Manager/Human Resources/Safety Director, he is ineligible to upgrade because the position of Human Resources/Safety Director no longer exists." This was followed by another letter on November 4, 1999, which reconfirmed the earlier finding and offered Petitioners a point of entry to contest the proposed action. Petitioners then initiated this proceeding. There is no rule or statute which provides that if the job duties of a position upgraded from regular to SMSC do not remain the same, prior regular service cannot be upgraded. However, since the inception of the SMSC in 1987, the Division has consistently ascribed that meaning to the words "within the purview of the [SMSC]" in Section 121.055(1)(i), Florida Statutes (1997), and Rule 60S-2.013(2), Florida Administrative Code. Thus, if the new duties are "not within the purview" of the past regular service class, that is, they are different in any respect, the employee cannot purchase and upgrade the prior service. This interpretation of the statute and rule was not shown to be clearly erroneous or outside the range of possible interpretations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioners' request for an upgrade of Charles C. Burlingame's service under the Senior Management Service Class. DONE AND ENTERED this 21st day of March, 2000, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 21st day of March, 2000. A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Cecilia Redding Boyd Bryant & Higby, Chartered Post Office Box 860 Panama City, Florida 32402-0860 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work). Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits. DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1991. COPIES FURNISHED: Thomas J. Carpenter 1669 Flamingo Blvd. Bradenton, FL 34207 Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services P.O. Box 1415 Punta Gorda, FL 33951-1415 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Anthony N. DeLuccia, Esquire Department of Health and Rehabilitative Services P.O. Box 06085 Fort Myers, FL 33906
Recommendation The Hearing Officer would, based on the foregoing Findings of Fact and Conclusions of Law, recommend that no action be taken because Dr. Evangelakis has not suffered a demotion or other personnel action appealable to the Career Service Commission. DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1976. COPIES FURNISHED: Douglas E. Whitney, Esquire HRS, Legal Services 1323 Winewood Blvd. Tallahassee, Florida 32301 E. Leonard Fleet, Esquire 4001 Hollywood Blvd. Hollywood, Florida 33021 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel & Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304
The Issue Whether Petitioner is entitled to a refund of interest he paid in 1999 on the employee contribution that became due when he opted to change his retirement classification from the regular class to the special risk class for the period September 1974, through September 30, 1975.
Findings Of Fact Petitioner was employed by the Metropolitan Dade County Police Department (now Miami-Dade Police Department) on September 9, 1974, as a Police Technician. He has held that employment since that date of hire. Petitioner was enrolled in the FRS when he was first employed. His employer reported him as a member of the regular class for retirement purposes. During the period September 9, 1974, and September 30, 1975, the FRS was a contributory system, which required both the employee and the employer to make contributions towards the employee's retirement. Since October 1, 1975, the FRS has been a non-contributory system, which means the employer makes all contributions on behalf of each employee. In addition to the regular class for retirement purposes there are other retirement classes, including the special risk class, which requires higher contributions than the regular class, but provides enhanced benefits. In June 1977, Petitioner applied to Respondent for membership in the special risk class. The Director of the Division of Retirement denied this requested change. Petitioner thereafter requested a hearing before the State Retirement Commission. Following a hearing on December 20, 1978, the State Retirement Commission entered a Final Order on February 17, 1979, that reversed the decision denying Petitioner's eligibility in the special risk class. Pursuant to rules in effect when the State Retirement Commission entered its ruling, the Director of the Division of Retirement determined in 1979 that Petitioner was entitled to the special risk class retroactive to June 1, 1977. 1/ In 1982, the Division of Retirement changed its rules to permit employees to claim special risk membership retroactive to the date of employment in any position that qualified for special risk class. 2/ As part of his retirement planning Petitioner asked the Division of Retirement in 1998 to audit his retirement account to provide an estimate as to his retirement benefits. In response to that request, the Division of Retirement reviewed Petitioner's retirement status. On January 26, 1999, the Division of Retirement determined that because of changes in its rules, Petitioner was now entitled to claim membership in the special risk class retroactive to September 9, 1974. On January 28, 1999, the Division of Retirement mailed an estimate of his retirement benefits and options to Petitioner. One of the options contained an estimate that assumed Petitioner would elect to claim membership in the special risk class retroactive to his date of hire. The estimate for that option reflected that Petitioner would owe the FRS the sum of $2,201.69 if he claimed special risk class retroactive to September 9, 1974. In response to Petitioner's request for an explanation as to why he would owe that sum, the Division of Retirement advised him on May 18, 1999, that he would owe the sum of $503.12 for the previously unpaid employee contribution for the period September 9, 1974, through September 30, 1975, and that, in addition, he would owe interest on that unpaid contribution in the amount of $1,698.57. 3/ Petitioner thereafter paid the employee contribution in the amount of $503.12 and he also paid, under protest, the interest that is at issue in this proceeding. 4/ Petitioner was not aware until 1999 that he could claim membership in the special risk class for the period at issue in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing this proceeding. DONE AND ENTERED this 31st day of October, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of October, 2000.
