The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged: The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me. With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws. Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail. In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law. In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2). Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987. Petitioner was not authorized to take leave during the time in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. 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 5th day of February, 1988. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louis C. Germaine 308 Northeast 117th Street Miami, Florida 33161 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2008.
The Issue Whether Petitioner abandoned her position of employment and resigned from the career service.
Findings Of Fact Petitioner, Hermia Reid, began her employment with Respondent, Department of Health and Rehabilitative Services (DHRS) on April 29, 1985. At the times pertinent to this proceeding, she was a registered nurse and held the career service position of Senior Registered Nurse Supervisor at the Landmark Learning Center, a DHRS facility. Petitioner had been given a copy of the DHRS Employee Handbook which contained the pertinent attendance and leave policies. Petitioner was on authorized annual leave for a vacation from June 25, 1990 through July 10, 1990. She was scheduled to return to work on July 11, 1990. For her vacation, Petitioner traveled to the State of New York to visit relatives. On July 1, 1990, Petitioner received injuries to her neck and back from an automobile accident. On July 2, 1990, Petitioner was examined by Dr. Victor Brooks, a physician whose office is in Yonkers, New York. Dr. Brooks determined that Petitioner required therapy and bed rest for three to four weeks. On Friday, July 6, 1990, Petitioner telephoned Claude Sherman, her supervisor, and told him of her injuries and of her inability to return to work as scheduled. Petitioner requested an extension of her leave. Mr. Sherman verbally granted a one-week extension of her authorized leave on the condition that Petitioner send him a letter from her doctor. On July 9, 1990, Petitioner returned to Dr. Brooks and received a note from him which he dated July 2, 1990, the date of the initial visit. This note provided in pertinent part as follows: The above named individual was in a motor vehicle accident and suffered neck and back injuries. Due to her present condition, it was decided that she should receive therapy and bed rest over a period of 3-4 weeks. On July 10, 1990, Petitioner gave the note from Dr. Brooks dated July 2, 1990, to her brother and asked him to mail it to Mr. Sherman by certified mail, return receipt requested. On July 20, 1990, Petitioner became concerned that the receipt for the certified mailing had not been returned and asked her brother about the mailing. Petitioner learned that her brother had forgotten to mail the note. Petitioner's brother mailed the note dated July 2, 1990, to Mr. Sherman on July 21, 1991. On July 30, 1990, Ulysses Davis and Mr. Sherman, as Superintendent and as Executive Nursing Director of Landmark, respectively, mailed to Petitioner at her home address in Miramar, Florida, a letter which had been dated July 23, 1990. This letter provided, in pertinent part, as follows: You have not called in or reported to work since July 10, 1990, and therefore you have abandoned your position as a Senior Registered Nurse Supervisor and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System. Your resignation will be effective on the date you receive this letter or on the date we receive the undelivered letter advising you of your abandonment. At the time the letter of July 23, 1990, was mailed to Petitioner, the note from Dr. Brooks dated July 2, 1990, had not been received by Mr. Sherman. Because Mr. Sherman did not receive a doctor's note from Petitioner prior to July 23, 1990, he did not authorize her leave after her authorized annual leave expired on July 11, 1990. Dr. Brook's note dated July 2, 1990, was received by Landmark on or about August 2, 1990. 1/ The letter from Mr. Sherman and Mr. Davis was mailed to Petitioner by certified mail, return receipt requested. Daphney Gaylord, Petitioner's neighbor, received this mailing on Petitioner's behalf and signed the return receipt. Petitioner did not receive the letter, nor was she made aware of its contents, until August 15, 1990. On July 27, 1990, Petitioner returned to Dr. Brooks and received another note which provided, in pertinent part, as follows: The above named was examined by me today and as a result, I am requesting a follow up visit in two weeks as she is not ready to return to work. Dr. Brook's note of July 27, 1990, was mailed by certified mail to Mr. Sherman by Petitioner's brother on August 2, 1990, and was received by Mr. Sherman on August 6, 1990. After visiting Dr. Brooks on July 27, 1990, Petitioner attempted to reach Mr. Sherman by telephone to advise him of her status. Mr. Sherman was not available so Petitioner talked with Mr. Sherman's wife. Mrs. Sherman also worked at Landmark, but she was not Petitioner's supervisor. Mr. Sherman was unaware that Petitioner had spoken with his wife. On August 13, 1990, Dr. Brooks discharged Petitioner from his care and authorized her to return to work after she had visited her physician in Florida. Dr. Brook's note of August 13, 1990, provided, in pertinent part: As per previous notes and as per complete physical examination today it is my feeling that the above named can return to work after seeing her regular M.D. On August 14, 1990, Petitioner returned to Florida. On August 15, 1990, Petitioner was examined by Dr. Sylvia Cohn, a physician practicing in Pembroke Pines, Florida, who advised that Petitioner would be able to return to work on August 20, 1990. Also on August 15, 1990, Petitioner met with Mr. Sherman at Landmark. Mr. Sherman advised Petitioner that her employment had been terminated, asked whether she had received his letter dated July 23, 1990, and advised her to talk with Thelma Olifant, Landmark's personnel director. Petitioner went home after unsuccessfully attempting to locate Ms. Olifant. After she returned home on August 15, 1990, Petitioner contacted her neighbor, Ms. Gaylord, and received from her the certified letter from Mr. Sherman and Mr. Davis dated July 23, 1990. Petitioner had no history of discipline concerning abuse of leave policies. Petitioner did not intend to resign her position with the career service.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner did not abandon her career service position and which orders that Petitioner be reinstated with back-pay to her career service position with the Department of Health and Rehabilitative Services. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. 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 16th day of May, 1991.
The Issue This is a case in which the Petitioner, an unsuccessful applicant for employment in a position with the Department of Education, filed a petition seeking a formal hearing to contest the Department's hiring of another applicant. The primary issues in this case are: Is an unsuccessful applicant for employment entitled to a hearing under Section 120.57, Florida Statutes, to challenge the agency's hiring decision? If so, does the Petitioner in this case have standing to bring such a challenge? If the Petitioner has standing, did the agency's hiring decision depart from the requirements of law? All parties presented evidence at the hearing and following the hearing all parties were afforded an opportunity to file proposed recommended orders. The Petitioner and the Intervenor filed post-hearing briefs and the Respondent filed proposed findings of fact and conclusions of law. All of the parties' post- hearing submissions have been carefully considered during the formulation of this recommended order. All findings of fact proposed by the parties are addressed in the attached Appendix.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: The Intervenor, Joann Carrin, was employed by the Commissioner of Education as her Executive Assistant from February 11, 1987, until she was moved temporarily to the position she currently holds as a Program Specialist III with the Division of Public Schools. Ms. Carrin was temporarily assigned to Position No. 01681 prior to the official advertisement of that position. Ms. Carrin has significant experience in the criminal justice system and has a bachelor's degree in criminal justice from Florida State University. The selection of Ms. Carrin was made on the basis of the agency's perceptions about her qualifications for the job and not on the basis of any influence or other improper motive. Ms. Carrin timely filed her application for Position No. 01681, was interviewed by Larry Hutcheson, and was selected to fill that position permanently. Position No. 01681, Program Specialist III with the Division of Public Schools, Bureau of Program Support Services, Office of Risk Assessment Information System, required significant experience in the criminal justice system because it involved the coordination of activities of the RAIS Coordinating Council (Risk Assessment Information System) which dealt with the interface between educational agencies and the criminal justice system. The "minimum qualifications" listed in the announcement for Position No. 01681 Program Specialist III, are minimum qualifications for all Program Specialist III positions in the Department of Education. Such "boiler plate" minimum qualifications are often substituted for by other experience and/or education of an applicant which are more specific to the position being advertised. Position No. 01681 was properly advertised in accordance with the normal administrative procedures for such an advertisement. All of the employment applications received for the subject position were first reviewed by Jeanne Messer to see whether the minimum qualifications listed on the Position Vacancy dated November 2, 1987, were met by the applicants. Upon initial review, Ms. Carrin's application indicated that she did not qualify for the position based on the "minimum qualifications." Therefore, Ms. Messer wrote "not qualified" on the job application of Ms. Carrin. All employment applications received for the subject position were then transferred to Larry Hutcheson for his review and selection of persons whom he wished to interview for the position. Applicants who did not meet the minimum qualifications as listed in the Position Vacancy can still be hired for the job in question if they have other experience and/or education which may be substituted for the experience and education listed in the minimum qualifications section of the employment announcement. The Department of Education has the authority to substitute other experience and education for the minimum qualifications indicated on a Program Specialist III job announcement. Ms. Carrin was selected to fill the subject position pursuant to that authority. When the applicant chosen to fill a position does not meet the published "minimum qualifications," the individual making the choice must justify the proposed choice. Such a justification was properly completed by Mr. Hutcheson to justify the selection of Ms. Carrin. The Department of Administration reviews substitutions of experience and education for compliance with established standards. Ms. Cynthia McDaniel is the individual in charge of the section of the Department of Administration that conducts such reviews. The substitution of Ms. Carrin's education and experience for the minimum qualifications listed in the job description for Position No. 01681 were reviewed by Cynthia McDaniel's staff and found to be in accordance with the substitution procedures established by the Department of Administration. The Petitioner, D. Paul Sondel, was one of numerous applicants for employment in Position No. 01681. He submitted a timely application which was preliminarily evaluated as meeting the minimum qualifications listed in the announcement for Position No. 01681. There is no evidence in the record as to how the qualifications of Mr. Sondel compare to the qualifications of Ms. Carrin or to the qualifications of any of the other many applicants. Specifically there is no evidence in the record which would support a finding that Mr. Sondel was the best qualified candidate for Position No. 01681.
Recommendation Based on all of the foregoing, it is recommended that the Department of Education issue a final order in this case dismissing the petition and denying all relief sought by the Petitioner. DONE AND ENTERED this 6th day of March, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3033 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Petitioner's Brief does not contain any portion designated as proposed findings of fact, but at pages thirteen through twenty-one, under the caption "Hearing testimony and evidentiary revelations," the Petitioner does purport to address some of the factual issues in this case. Accordingly, those pages of the Petitioner's Brief have been treated as the Petitioner's proposed findings of fact, and, to the extent possible, are specifically addressed below. (Specific attention to some of the factual material in the above-described portion of the Petitioner's Brief is virtually impossible as a result of factual material being inextricably intertwined with argument.) Page 13: The quoted material in the top paragraph is rejected as subordinate and unnecessary details. The first sentence in the second paragraph is rejected as constituting a conclusion not warranted by the evidence. The remainder of this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 14: The material on this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 15: All of the material on this page is rejected as subordinate and unnecessary details or as irrelevant to the disposition of this case. Page 16: All of the material on this page is rejected as an inextricably intertwined combination of argument and subordinate and unnecessary details. Further, most of the factual assertions on this page constitute inferences not warranted by the evidence. Page 17: All of the material on this page is rejected as constituting unnecessary details. Page 18: All of the material on this page is rejected as constituting argument or a combination of argument and subordinate and unnecessary details. Further, some of the assertions on this page constitute inferences not warranted by the evidence. Page 19: First three paragraphs are rejected as constituting subordinate and unnecessary details. The last paragraph is accepted in substance, with the omission of some subordinate and unnecessary details. Page 20: All of the material on this page is rejected as constituting either argument or proposed findings that are not supported by the evidence. Page 21: All of the material on this page is rejected as constituting primarily argument and inferences which are not warranted by the evidence. Findings proposed by Respondent: The findings of fact in this recommended order incorporate the substance of all of the findings proposed by the Respondent with the exception of Paragraph 17 of the Respondent's proposed findings. Paragraph 17 is rejected because the first sentence is repetitious or cumulative and the second sentence constitutes argument rather than proposed findings of fact. Findings proposed by Intervenor: The brief submitted on behalf of the Intervenor consists primarily of legal arguments. The Intervenor's brief does not contain any proposed findings of fact. (Although there are some references to the facts in the context of the legal arguments, there is nothing in the Intervenor's brief which purports to be or which appears to be proposed findings of fact.) COPIES FURNISHED: Mr. D. Paul Sondel, pro se 1625 Centerville Road, TH22 Tallahassee, Florida 32303-4721 Charles S. Ruberg, Esquire Assistant General Counsel Florida Department of Education Knott Building Tallahassee, Florida 32399-0400 Ronald G. Meyer, Esquire Post Office Box 1547 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Sydney H. McKenzie, III, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner was formerly employed by Respondent as a Human Services Worker assigned to the Landmark Learning Center, a residential facility located in Dade County. She began her employment on May 10, 1985. On January 13, 1989, Petitioner received the following memorandum from the Residential Services Director of Facility I at Landmark: In reviewing your time and attendance record from August, 1988, I have observed that you are exhibiting excessive absences and/or tardiness. These frequent absences place an unfair burden on your coworkers and interfere with the operations of this center. Therefore they will no longer be tolerated. Effective on the date you receive this communication, the following restrictions will be in effect: As always, you are expected to have all leave time approved in advance by your immediate supervisor. You are expected to submit a doctor's statement justifying your absence prior to the approval of any sick leave, annual-sick leave, or family-sick leave. You will not be allowed to substitute any other type of leave for these absences. Failure to comply with the above restrictions will result in disapproved leave without pay for the dates in question, and a recommendation for disciplinary action based on absence without authorized leave. In addition a continued pattern of excessive absence could result in disciplinary action for excessive absence/tardiness. All disciplinary [action] will be in accordance with HRS-P-60-1, Employee's handbook. I am confident that you will correct this situation in a satisfactory manner. At no time prior to the termination of Petitioner's employment with Respondent were the "restrictions" imposed by this memorandum lifted. In early 1990, Petitioner sustained an on-the-job injury. As a result of the injury, Petitioner was on authorized leave from February 25, 1990, until April 4, 1990. When she returned to work on April 5, 1990, Petitioner was assigned to "light duty" in the field office of which Sylvia Davis, a Senior Residential Unit Supervisor, was in charge. Petitioner's working hours were 6:00 a.m. to 2:30 p.m. Petitioner was advised that Roberta Barnes would be her immediate supervisor during her "light duty" assignment. On April 5, 1990, Petitioner worked six and a half hours. She was on authorized leave the remainder of her shift. On April 6 and 7, 1990, she worked her full shift. On April 8 and 9, 1990, Petitioner did not report to work. She telephoned the field office before the beginning of her shift on each of these days and left word that she would not be at work because she was experiencing pain in her lower back and right leg; however, she never received supervisory authorization to be absent from work on these days. April 10 and 11, 1990, were scheduled days off for Petitioner. At approximately 11:00 p.m. on April 11, 1990, Petitioner telephoned the field office and gave notice that, inasmuch as her physical condition remained unchanged, she would not be at work the following day. Petitioner did not report to work on April 12, 1990. Although she had telephoned the field office the night before to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on April 12, 1990. On April 13, 14, 15 and 16, 1990, Petitioner did not report to work because she was still not feeling well. She neither telephoned the field office to give advance notice of her absences, nor obtained supervisory authorization to be absent on these days. April 17 and 18, 1990, were scheduled days off for Petitioner. Prior to the scheduled commencement of her shift on April 19, 1990, Petitioner telephoned the field office to indicate that she would not be at work that day because she had a doctor's appointment, but that she hoped to return to work on April 20, 1990. Petitioner did not report to work on April 19, 1990. Although she had telephoned the field office to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on that day. On April 19, 1990, Petitioner was sent the following letter by the Superintendent of Landmark: You have not called in or reported to work since April 12, 1990 and therefore you have abandoned your position as a Human Services Worker II and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System. Your resignation will be effective on the date that you receive this letter or on the date we receive the undelivered letter advising you of your abandonment. You have the right to petition the State Personnel Director, 530 Carlton Building, Tallahassee, Florida 32304 for review of the facts. Such petition must be filed within twenty (20) calendar days after receipt of this letter. At approximately 12:40 a.m. on Friday, April 20, 1990, unaware that she had been deemed to have resigned her position, Petitioner telephoned the field office to give notice that she would be out of work until after her doctor's appointment on Monday, April 23, 1990. On April 23, 1990, Petitioner again telephoned the field office to advise that she had to undergo further medical testing and therefore would remain out of work until the required tests were performed. Petitioner's call was transferred to Elaine Olsen, a Personnel Technician II at Landmark, who told Petitioner about the letter the Superintendent had sent to Petitioner the previous Thursday. Petitioner received the letter on April 30, 1990. Petitioner did not report to work during the period referenced in the Superintendent's letter because she was not feeling well. She did not intend, by not reporting to work on these days, to resign or abandon her position. It was her intention to return to work when she felt well enough to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order (1) finding that Petitioner did not abandon her career service position, and (2) directing Respondent to reinstate Petitioner with back pay. DONE and ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. STUART M. LERNER 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 16th day of May, 1991.
The Issue Validity of Emergency Rule 22 AER 76-1, Department of Administration. This case concerns Petitioner's challenge of the validity of Emergency Rule 22 AER 76-1, Department of Administration, State of Florida, on the ground that promulgation of the rule was an invalid exercise of delegated legislative authority. The petition specifically alleges that Respondent failed to make an adequate finding that an immediate danger to the public health, safety, or welfare warranted an emergency rule, and that there existed no such immediate danger which might have necessitated enacting an emergency rule. The petition further alleges that the procedure adopted by Respondent in promulgating the emergency rule was unfair and contrary to law. The petition was filed with the Division of Administrative Hearings on February 23, 1977, and thereafter assigned to the undersigned Hearing Officer. Prior to final hearing herein, Petitioner propounded written interrogatories and requests for admission from Respondent. The Respondent filed a "Notice of Objection" to the said interrogatories on grounds that judicial review is exclusive as to the agency's findings of immediate danger, necessity, and procedural fairness, as provided under subsection 120.54(9)(a)3, F.S., and that therefore the Hearing Officer has no jurisdiction over the matter. The parties stipulated that if Respondent's objection was resolved in favor of Petitioner, the interrogatories and answers submitted by Respondent thereto, together with supporting documents, would be admissible in evidence for all relevant purposes. For the reasons stated hereinafter in Conclusions of Law, it is determined that the Hearing Officer has jurisdiction in this case and, accordingly, the stipulated matters are accepted, as set forth below.
Findings Of Fact On April 26, 1976, the procedures for layoff of state career service employees contained in certain memoranda of the Department of Administration (DOA) and the Department of Health and Rehabilitative Services were determined to be invalid rules by a Hearing Officer of the Division of Administrative Hearings. (J. Richard Stevens v. DHRS and DOA, DOAH Case No. 75-2024R). The specific documents held to be invalid rules were Personnel, Policy and Procedure Memorandum No. 74-7, Subject: Guidelines for Preparing Layoff Procedures, issued by the DOA, and Directive No. 8.07, Dept. of HRS, Subject "Layoff and Reemployment of Personnel." The DOA procedures were effective on July 1, 1974, and implemented Rule 22A-7.10(H)(3), Florida Administrative Code. On May 25, 1976, the First District Court of Appeal denied a motion of the DOA for a stay of the Hearing Officer's Final Order (Case No. CC-101). However, the Hearing Officer granted a stay of his Final Order until June 21, 1976. On April 6, 1977, the First District Court of Appeal upheld the Final Order of the Hearing Officer in the Stevens case (Case No. CC-101,156.) A 1976 amendment of subsection 110.061(2)(a), required specified layoff procedures to be developed by Respondent. (Chapter 76-116, Laws of Florida) Federal standards for a merit system of personnel administration affecting all state agencies receiving federal grant-in-aid funds that were in effect in 1976 require the establishment of certain procedures for layoff of permanent state employees. (Testimony of Dean, Attachment 5 to Respondent's memorandum) Respondent's personnel officers were aware that there was impending legislation to abolish some 2,000 state employee positions, effective June 30, 1976, that would require the existence of layoff criteria and procedures for orderly and fair implementation (Testimony of Dean). In view of the foregoing, DOA,during the latter part of May and early June, 1976, began the process of formulating and adopting an emergency rule to cover layoff procedures. Although consideration was given to the possibility of following normal rule-making procedures, it was determined that there was insufficient time available to promulgate a rule in that manner. (Testimony of Dean) Notice of the proposed emergency rule was prepared and published in the June 11, 1976, issue of the Florida Administrative Weekly. The notice stated that the rule would become effective upon filing with the Secretary of State, and that a copy could be obtained by writing to the state personnel director. It provided in part as follows: "SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO PUBLIC HEALTH, SAFETY AND WELFARE: Recent changes in law have cast doubt upon the proper current Career Service layoff procedure. Because numerous layoffs may be required before a permanent rule could become effective, it is essential to the welfare of the State that all doubt be removed by adoption of a definite procedure, both for the benefit of the State as employer and of the affected employees. REASONS WHY PROCEDURE USED IS FAIR UNDER THE CIRCUMSTANCES: The emergency rule is based on the recommendations of the Career Service Commission contained in its report of November 7, 1975, following public hearings October 23 and 24, 1975, incorporating any applicable guidelines approved by the Secretary of Administration." The proposed emergency rule was placed on the agenda of the Administration Commission for June 15, 1976, and, after discussion, the rule was amended and adopted by that body. On the same date, the emergency rule was filed with the Department of State. (Composite Exhibit 1a-d, Exhibit 2) By letter of June 16, 1976, Petitioner was informed by the personnel officer of the Department of Agriculture and Consumer Services that his position of Agriculture Investigator Supervisor in the Division of Animal Industry had been abolished, effective June 30, 1976, and that, in accordance with Department of Administration Emergency Rule No. 22 AER 76-1, he was being notified of the proposed action. Pursuant to that notification, Petitioner was laid off as of June 30, 1976. He thereafter filed an appeal with the Career Service Commission on July 7, 1976. (Testimony of Shelby, Exhibits 3, 4)
Findings Of Fact Mr. Sherman Merrill began his position at Sunland Training Center in Orlando, Florida, on March 27, 1981 as an employee of the Department of Health and Rehabilitative Services. His last day on the job was August 7, 1982. As a behavioral program specialist, Mr. Merrill is responsible for supervising subordinate staff and for the behavior programming of HRS client residents in a residential living unit at the Sunland Training Center. He develops, monitors, and implements behavioral programs which are contained in each resident's habilitation plan. These plans are designed to eliminate inappropriate behavior and teach daily living skills. Mr. Merrill's responsibilities are professional and managerial. They do not require strenuous physical activity. On August ,12, 1982 Noel F. Windsor, the Superintendent of the Sunland Center, granted Mr. Merrill a temporary leave from his responsibilities without pay pending a diagnosis and prognosis from Dr. Robert C. Mumby on Respondent's physical ability to perform his responsibilities. Respondent asserted that he was no longer able to work due to back pain. An appointment with Mr. Mumby was scheduled for Respondent on August 17, 1982. On August 11, 1982 Mr. Merrill's immediate supervisor, Ms. Sharon Blume, limited Mr. Merrill's responsibilities to eliminate lifting any weight under any circumstances including emergencies. Prior to examining Mr. Merrill Dr. Mumby requested permission to see Mr. Merrill's x-rays which had previously been taken of his back. Mr. Merrill refused the request and as a result Dr. Mumby cancelled the examination appointment. The Sunland Center then scheduled an appointment for Mr. Merrill to be examined by Dr. Bott on August 19, 1982. Mr. Merrill did not keep this appointment and it was rescheduled for August 25, 1982. The August 25, 1982 appointment was kept and as a result of that appointment Dr. Bott reported in his findings that Mr. Merrill was able to return to work with restrictions. 1/ On October 15, 1982 HRS requested Respondent to return to work on October 19, 1982. He did not appear as requested. On October 25, 1982 Mr. Windsor wrote a letter to Respondent stating that he would continue to be carried in a leave without pay status until such time as Dr. Bott has evaluated the x-rays in relation to the examination conducted on August 25, 1982. The foregoing letter was sent to Respondent by certified mail, return receipt requested. It was later returned to the Department of Health and Rehabilitative Services as unclaimed after attempts to deliver it were made on October 26 and October 30. On November 19, 1982 a copy of the October 25, 1982 letter was sent to Respondent by certified mail, return receipt requested. HRS again requested a release of Respondent's earlier x-rays for review by Dr. Bott. On December 10, 1982 Mr. Windsor wrote to Respondent a letter which stated in part: In accordance with the recommendation by Dr. Paul Raymond, your family practice physician in Cresson, Pennsylvania, we have scheduled an appointment for you with Dr. William K. Bott, Orthopedic Surgeon, 87 West Underwood Street, Orlando, Florida 32806, on Tuesday, December 21, 1982 at 10:00 A.M. As you are aware, we made an appointment for you with Dr. Bott on August 19 which you did not keep, and again on August 25, 1982. After the examination of August 25, Dr. Bott advised this agency that you were able to return to work with restrictions. He also advised us that he would re-evaluate you after reviewing your x-rays. You refused to allow Dr. Bott to make x-rays, and you also refused to authorize the release of previously made x-rays. Enclosed for your information is a copy of Chapter 22A-8 of the Florida Personnel Rules and Regulations. Please be advised that all fees for this visit will be paid by Sunland Center. Mr. Merrill did not see Dr. Bott on December 21, 1982, but was examined by him on January 4, 1983. On February 15, 1983 Mr. Merrill was told to report to work on February 21, 1983. Mr. Merrill did not report as ordered, but instead requested another leave of absence without pay. This request was denied on February 22, 1983 on which date Mr. Merrill was notified that he was absent without leave and that if he did not report to work by February 23, 1983 he would be deemed to have abandoned his position and voluntarily resigned from the career service system pursuant to Section 22A-8.02, Florida Administrative Code. Mr. Merrill did not report for work within the time allowed, three consecutive days after February 21, 1983. Mr. Windsor wrote him a letter on February 25, 1983 which stated: As you were advised in our letter of February 22, 1983, your request for an additional six (6) months leave of absence has been denied. Further, you were notified in that letter that you were to report to your work station prior to 3:15 P.M., February 23, 1983. You were examined by Dr. William K. Bott on August 25, 1982 and released to return to restricted duty. You failed to do so. You were re-examined on January 4, 1983 by Dr. Bott, and again, released to return to your Behavioral Program Specialist duties with restrictions. He indicated that you are able to perform sedentary type duties, you should not do repeated activities, repeated lifting or pulling using the lift [(sic) should be "left"] upper extremity (copy of diagnosis attached). You were advised by our letter of February 15, 1983 to return to your duties at Sunland Center, February 20, 1983 at approximately 2:00 P.M., you telephoned Living Unit 1E and left the message that you would not be reporting to work on February 21. At approximately midnight on February 20, 1983, you presented yourself on the Living Unit 1E to review the Personnel Rules and Regulations. On February 21, 1983, you presented your immediate supervisor with a request for additional leave of absence and left the facility. On February 23, 1983 at 1:50 P.M., during a meeting with your supervisors, you advised Ms. Patricia L. Gleason, Resident Life Program Supervisor, and Ms. Sharon Blume, Resident Life Unit Supervisor and your immediate supervisor, that you would not be coming to work. As you have failed to report to work for three (3) consecutive days, we must assume that you have abandoned your position with Sunland Center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order determining that Respondent Sherman Merrill has abandoned his position in the State Career Service System as a Behavioral Program Specialist. DONE and RECOMMENDED this 16th day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1983.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of an unlawful employment practice by the alleged failure to re-hire him by the Respondent because of his alleged disability.
Findings Of Fact The Petitioner was employed as a machinist operating a "pega" machine for the Respondent at times pertinent hereto, in 1992 and 1993. On or about February 24, 1992, while he was home for lunch, the Petitioner apparently suffered a stroke. He was hospitalized and his wife and a nurse informed his employer of his medical condition. The Respondent is an employer within the meaning of Chapter 760, Florida Statutes. It is a manufacturer of commercial laundry equipment and employs more than 15 employees. Because of the medical condition related to his stroke, the Petitioner applied for and was granted a medical leave of absence on or about February 24, 1992 or shortly thereafter. There is apparently some question whether the Petitioner's supervisor actually signed the leave request, but the employer does not dispute that he was legitimately on a medical leave of absence until August 13, 1992. There is also some dispute concerning whether the Respondent employer knew that the Petitioner had suffered a stroke or not. The complainant's personnel file, however, contained two notes dated March 12, 1992 and August 17, 1992 from Dr. Watts, his treating and attending physician. The March 12, 1992 note confirmed that the Petitioner had been hospitalized and had had an abnormal cerebral imaging result, also suffered from hypertension and, at that time, was unable to return to work. The August 17, 1992 note from Dr. Watts stated that the Petitioner could return to work and stated that there were no restrictions on his activities. Thus, the evidence of record indicates that there was a basis for the Respondent to know that the Petitioner had a stroke or some type of disability between February 24, 1992 and August 17, 1992. Upon his release by his attending physician on August 17, 1992, without medical restriction of his activities, so that he could return to employment, there was no basis for the Respondent to believe from that point forward that the Petitioner had any disability. This is borne out by the Petitioner's own testimony revealing that he repeatedly sought re-employment with the Respondent during the period from August 1992 through February 1993 without advising the Respondent of any employment restrictions due to his medical condition or any purported disability. When the Petitioner returned to the Respondent's place of business on August 17, 1992 and sought to come back to work after his medical leave, the plant manager informed him that he had no openings for him at that time. There were two positions being filled at that time, but they were not positions for which the Petitioner was qualified. One was a position requiring skill at electrical schematic reading, which was an electrical assembly position. The Petitioner was not qualified for this position. The other position was as a "tig welder", a highly-skilled type of welding process. The Petitioner was not qualified to perform this, as well, because of his lack of knowledge of welding. The position, and similar positions, operating "pega" machines (machine tools), which the Petitioner had filled and performed prior to his illness, were all filled and unavailable at the time the Petitioner sought to return to work in August of 1992. Neither the Petitioner nor his physician had given any indication of when the Petitioner could return to work, prior to August 13, 1992, nor was there any communication with the Petitioner or his physician for six months during his leave of absence, other than the provision to the company of the physician's note in March 1992 concerning the brief description of his medical condition. Consequently, on August 13, 1992, when Mr. Rieff, the plant manager, received a note from the Petitioner's physician stating that he could return to work without restriction, there were no positions available for his type of skill and training. Therefore, the company recorded the Petitioner's status, as of August 1992, as being discharged due to the conclusion of his medical leave with no open positions suitable for him being available. The Petitioner testified that he sought employment several times during the period of August 1992 through January 1993 by attempting to contact or contacting Mr. Rieff. He stated that Mr. Rieff told him to check with him every two or three weeks because each time he spoke with him, Mr. Rieff informed him that no openings were available at that time. The Petitioner, however, filed no application for employment until he learned, from a visit to the state employment service office in February of 1993, that the Respondent was looking for a "pega machine operator". The Petitioner filed an application with the company at that time. Upon receiving the application or learning of it, Mr. Horton, Human Resources Director of the company, reviewed it and noted that the Petitioner had had previous experience with the company performing this same job. Mr. Horton had not been with the company at the time the Petitioner had left for his medical leave and, therefore, had no knowledge of his medical history, skills, abilities, and other past history with the company. Consequently, he consulted with Mr. Rieff concerning the advisability of re-hiring the Petitioner. Mr. Rieff advised against re-hiring the Petitioner because the Petitioner had had an attendance problem while he was employed by the company. In fact, although his other job skill and performance ratings were the highest, his attendance rating was the poorest in the company's system and means of rating performance. Consequently, because of Mr. Rieff's negative recommendation, on the basis of the Petitioner's past poor attendance record, which is substantiated by the evidence, Mr. Horton elected not to re-hire him. Mr. Horton did not know at that time of the medical history of the Petitioner because the medical records were housed in a different department of the company. Mr. Horton was the decision-maker for that employment decision. The employment action which resulted in the Petitioner filing the charge of discrimination at issue occurred when the Respondent failed to hire the Petitioner. The Petitioner maintains that it was on account of his medical condition or disability. The Petitioner verbally sought employment by contacting Mr. Rieff periodically from August 1992 through January 1993. On approximately January 7, 1993, Mr. Rieff effectively told the Petitioner that he would not hire him in the foreseeable future and that if he needed the Petitioner, he could call him. In February 1993, the application was actually filed by the Petitioner for employment, and Mr. Horton took the above negative action with regard to it. It is undisputed that the Respondent granted the Petitioner six months of medical leave. Whether or not the Respondent knew of the precise nature of the medical problem for which the Petitioner was given medical leave, the fact is established that upon the Petitioner being released by his treating physician with no restrictions and able to return to work, the Petitioner had no disability in terms of any impediment to his full employment, performing the full range of duties he had performed before the medical incident occurred in February 1992. Consequently, the Petitioner was not disabled from August 13, 1992 forward. The established reason that the Petitioner was not hired again by the Respondent company was because of his poor attendance record and not because of any perceived disability suffered by the Petitioner. In fact, at the times pertinent hereto when the decision at issue was made not to re-hire the Petitioner, the Petitioner suffered from no disability, and the Respondent had no perception that he did.
Recommendation Based on 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 RECOMMENDED that a Final Order be entered by the Commission on Human Relations dismissing the petition filed by the Petitioner, Dennis W. Thomas, in its entirety. DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2126 The parties were accorded the opportunity to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Respondent submitted proposed findings of fact, which are accepted (Nos. 1-6) to the extent they do not conflict with or are inconsistent with the findings of fact made by the Hearing Officer. The Petitioner submitted a post-hearing pleading, in letter form, which really amounts to an argument as to the quantity, quality and weight to be ascribed to the evidence and included citation to the relevant statute, Section 760.10, Florida Statutes, and a court case which merely is cited for the purpose of pointing out that employment cannot be denied a person on account of illness and disability. That principle is not in dispute in this proceeding. The Petitioner did not separately state proposed findings of fact which can be specifically ruled upon by the Hearing Officer. Nevertheless, all legal and factual issues alluded to in the Petitioner's pleading have been addressed and ruled upon in the body of this Recommended Order. COPIES FURNISHED: Dennis W. Thomas 4396 Clyde Lane Post Office Box 56 Marianna, Florida 32447 Roger W. Horton, III Human Resources Director Unimac Company, Inc. 3595 Industrial Park Drive Marianna, FL 32446-9458 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issue in the case is whether the Petitioner's employment position was properly reclassified from Career Service to Selected Exempt Service pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Respondent as a Vocational Rehabilitation Supervisor. As a Vocational Rehabilitation Supervisor, the Petitioner was responsible for supervising the performance of counselors and other employees in the Manatee County office. The Manatee County office employed nine persons, including five Vocational Counselors and four clerical and administrative employees. The position description applicable to the Petitioner's employment provided that he was responsible for hiring, evaluating, training, and managing employees in the office. He was responsible for managing and coordinating the fiscal resources available to the office. He was responsible for recruitment of new employees, and for the performance evaluation of existing employees. The Petitioner developed criteria used to hire new employees, created interview questions, and participated in the interview process. The Petitioner's employment recommendations were always approved by his supervisor. The review of the Petitioner's job performance focused primarily on his success in supervising his employees. He received an evaluation of "excellent" and "effective" in such categories as planning based on the missions and goals of the agency, implementation of quality control standards, efficient work organization, budget management, leadership, staff management and discipline, and effective evaluation of subordinates. As part of his supervisory responsibilities, the Petitioner was responsible for approval of all leave requests and travel reimbursement. He was also responsible for the employee evaluation process, including recommending staff members for performance based bonuses. The Petitioner was also responsible for any disciplinary action taken related to his subordinate employees. There is no evidence that the Petitioner did not perform his duties as described by the applicable position description. At the hearing, the Petitioner acknowledged that he was the supervisor for the office and its employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that the "Vocational Rehabilitation Supervisor" position held by Britton Townsend on July 1, 2001, was properly classified into the Selected Exempt Service. DONE AND ORDERED this 13th day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of April, 2004. COPIES FURNISHED: Margaret O'Sullivan Parker, Esquire Department of Education Office of the General Counsel 1244 Florida Education Center Tallahassee, Florida 32399-0400 Britton Townsend 331 11th Avenue, West Palmetto, Florida 34221 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350 South Hyde Park Boulevard Tampa, Florida 33606 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
