The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service pursuant to the personnel rules of the Career Service System?
Findings Of Fact The Petitioner was an employee of the Respondent for more than five years. At all times relevant hereto, the Petitioner was employed by the Respondent. During the month of December, 1986, and the portion of January, 1987, prior to the date the Petitioner was removed from his position, the Petitioner was assigned to the Blountstown, Florida, road maintenance office. The Petitioner's immediate supervisor was Mr. Gustavev Goodwin. Mr. Goodwin was an HMT-3 with the Respondent and supervised a maintenance crew of three men, including the Petitioner. Mr. Goodwin was the Petitioner's immediate supervisor. Mr. Lloyd Blackburn, a Highway Maintenance Supervisor with the Respondent, was Mr. Goodwin's immediate supervisor. Mr. Blackburn supervises all crews operating out of the Blountstown office. The Petitioner and his crew worked a 10-hour day, 4 days a week. Mr. Goodwin prepares a weekly crew report on a daily basis. Mr. Goodwin records the hours a crew member worked or, if a crew member was not present, Mr. Goodwin notes the absence and the reason for the absence. Mr. Blackburn transfers the information recorded on the weekly crew reports to timesheets which are used for payroll purposes. If approval of a request for leave is required, employees are required to report to their crew supervisor or Mr. Blackburn. The Petitioner would have been required to obtain approval of leave from Mr. Goodwin or Mr. Blackburn, if prior approval had been required. In cases of sick leave, employees were expected to call by telephone on the day of the illness or injury and inform Mr. Blackburn. Mr. Blackburn was at the office each work day in the morning before the crews completed fueling their trucks and departed for the day. Mr. Blackburn was then out of the office during most of the remainder of the day. During the last week of December, 1986, Mr. Goodwin, the Petitioner and the other members of Mr. Goodwin's crew were "bull skating" (joking and talking). The Petitioner told Mr. Goodwin in response to some comment, probably pertaining to the work that would be done the first week of January, 1987, that "I won't be here next week anyway. I be in the hospital." Although Mr. Goodwin did not remember the Petitioner having made these comments, the Petitioner and one of the crew members, Mr. Arthur Jackson, both testified that the comments were made. Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that he could be absent from work during the first week of January, 1987. The Petitioner was absent from work during the first week of January, 1987 -- January 5, 6, 7 and 8, 1987. Neither Mr. Goodwin nor Mr. Blackburn were contacted on January 5-8, 1987, by the Petitioner or anyone on behalf of the Petitioner, about the Petitioner's absence. Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that his absence on January 5-8, 1937, was approved. The Petitioner had obtained approval of annual leave prior to the period at issue in this case. The Petitioner had planned to go to the hospital on January 5, 1987, because of problems he has had with his legs, and to remain in the hospital for the remainder of the week. Because of the problems with his legs and his automobile, the Petitioner did not go to the hospital or see a doctor on January 5, 1987. On January 8, 1987, the Petitioner had a friend drive him to Panama City, Florida, where he remained under the care of Dr. Ernest G. Haslam, M.D., in the hospital, until January 12, 1987. Although the Petitioner does not have a telephone at his residence, Mr. Goodwin or Mr. Blackburn could have been contacted by Petitioner's wife, who works at Hardees, or by a friend. The Petitioner acknowledged receipt on April 14, 1983, of the Florida Department of Transportation Employee Handbook and his responsibility to review the handbook in detail and to request clarification, if necessary. On page 43 of the handbook it is provided that "[a]fter an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from Career Service ..." On page 22 of the handbook it is provided that "[i]f a medical appointment is necessary during work hours, you should obtain `approval, in advance, to use your earned sick leave." By certified letter from Allen Potter, Deputy Assistant Secretary of the Department, dated January 8, 1976, the Petitioner was informed that he was deemed to have abandoned his position with the Respondent and to have resigned from the Career Service because of his absence from work during the first week of January, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration rule that the Petitioner, Albert T. Smith, has not abandoned his position with the Respondent, the Department of Transportation, and has not resigned from the Career Service. DONE and ENTERED this 12th day of May, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0450 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s), if any, in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RD ." Petitioner's Proposed Findings of Fact The Petitioner has filed a letter dated April 10, 1987. The only proposed finding of fact contained in this letter concerns the question of whether the Petitioner told his supervisor, Mr. Goodwin, that he would not be at work during the period of time at issue in this case. The proposed finding of fact has been accepted in RD 10. Respondent's Proposed Findings of Fact Proposed Finding RD Number of Acceptance of Fact Number or Reason for Rejection 1 RD 1-4 and 8. 2 RD 5-7 and 9. 3 RD 10-11. 4 RD 11 and 13. The evidence did not prove that the Petitioner had obtained prior approval for sick leave subsequent to the period of time involved in this case. The evidence only proved that the Petitioner had on other occasions received prior approval of annual leave. 5 RD 19-20. RD 16 and 18. The evidence does not prove that the Petitioner got into a car and drove to town. RD 21. The Petitioner was not, however, "absent from his position without authorized leave ..." COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kay N. Henderson, P.E., Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 ATTN: Eleanor F. Turner, MS 58 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Mr. Albert T. Smith Route 1, Box 135, B 69A Blountstown, Florida 32424 =================================================================
The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2001.
Conclusions By Administrative Complaint dated December 1, 2009, the Agency for Persons with Disabilities charged Respondent, Bonnie’s Group Home, with three counts of violating Chapter 393, Florida Statutes, and Rule 65G-2.012(23)(c), Florida Administrative Code. The matter was referred to the Division of Administrative Hearings for a hearing. Before the hearing could be held, the parties advised the Administrative Law Judge that a Settlement Agreement had been reached and asked him to dismiss the cause with prejudice. On May 13, 2010, the Administrative Law Judge entered an Order Closing File and relinquished jurisdiction to the Agency for entry of a final order. Based on the foregoing and being otherwise fully advised in the premises, it is hereby ORDERED that the Settlement Agreement and Release entered into by the parties, a copy of which is attached hereto, is hereby ADOPTED AND APPROVED, The parties shall comply with and be governed by the terms and conditions of the Settlement Agreement and Release. Failure to comply with the Settlement Agreement and Release may result in further judicial proceedings. Fines provided for in the Settlement Agreement shall be paid to the Agency within ninety (90) days of the date of this Final Order and shall be mailed to: Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, FL. 32399-0950 APD-11-4670-FO | 1 Filed June 23, 2011 2:26 PM Division of Administrative Hearings DONE AND ORDERED, this 272 day of , 2011, in Tallahassee, Leon County, Florida. Mac bl Fu cer Agency for Persons wit Oi abilities Information about some sources of possible legal assistance may be found at: http//apd.myflorida.com/customers/legal/resource-listing.htm Copies furnished to: Steven Messer, Esq. Claudia Llado, Clerk Messer & Messer, Law Offices Division of Administrative Hearings 1555 St. Lucie West Boulevard, Northwest Ste. 202 Port St. Lucie, Florida 34986 Laurel Hopper, Esq. APD Area 15, Area Administrator Department of Children and Family Services CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- wi individuals at the listed addresses, by U.S. Mail or electronic mail, this X3 day of , 2011. CA _ - { fy f Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 APD-11-4670-FO | 2
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner suffered an adverse employment action as a result of unlawful discrimination because of the Petitioner's race, sex, national origin and religion, as provided in Section 760.10 et. seq., Florida Statutes.
Findings Of Fact At times pertinent hereto, the Petitioner was employed by the Respondent Department of Corrections at the Central Florida Reception Center. The Petitioner is an African-American woman who is dyslexic and is Jewish. Ms. Downer is no longer employed by the Department of Corrections. By her own admission, she was terminated from the Department at some point in July or August of 1997, for matters not related to the issues in the subject case. On August 15, 1996, the Petitioner approached Officer Kunkle and began to verbally assault him for his filing of an incident report on August 13, 1996, concerning the condition of a "post vehicle." Ms. Downer stated that she was going to "kick his ass" and made derogatory remarks about his race and gender. On April 4, 1996, the Petitioner attended a pre- determination conference that allegedly occurred on a Jewish holiday. The conference had been postponed once and was scheduled on April 4, 1996, at the request of Jim Payne, Downer's Police Benevolent Association (PBA) union representative. Mr. Payne was not an employee of the Department of Corrections. He informed Ms. Downer that if she wanted her job she would have to attend the conference. On February 6, 1996, Captain D. C. Havelick, Ms. Downer's supervisor, issued a written reprimand to Ms. Downer for abuse of sick leave privileges. The reprimand was issued because Ms. Downer stated that her sick leave would end on the particular day in question at 4:00 a.m., and because her supervisor learned that she had been working in the citrus groves instead of actually being sick. He perceived this as an abuse of sick leave privileges. The Petitioner has dyslexia. She did not request an accommodation for her dyslexia and there is no evidence that it affected her ability to perform her duties. Nevertheless, Colonel Frank Lopez accommodated the dyslexia by instructing Captain Havelick that reports for Downer's review should be read to her. No other disability was established at the hearing. Ms. Downer was assigned a vehicle based upon her post assignment. Each post has a specific vehicle assigned to it. Other officers use the same vehicle and equipment as Ms. Downer. All guard post vehicles are substantially similar. The Petitioner was allowed several Jewish holidays off from work. No evidence was presented at the hearing indicating that she did not receive a Jewish holiday off from work between August 15, 1996 and January 28, 1997, the time span involved in the Petition for Relief and the charges filed by the Petitioner. Whether the Petitioner received a holiday off depended upon the staffing situation at the institution at the time. A critical compliment of officers is necessary in order to effectively operate the correctional institution, and if another officer could not replace Ms. Downer for her shift, it is possible that she would be required to work on a Jewish holiday. Reasonable efforts were made to accommodate her leave requests as they were made.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 7th day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2001. COPIES FURNISHED: Geneva Batsheba Downer 5446 Terrell Road Mount Dora, Florida 32757 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Michael J. Moore, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-3100
The Issue The issues in this case are whether Respondent terminated Petitioner due to race or handicap and, if so, the nature of the relief that she should be awarded. The parties agreed to reserve the issue of attorneys' fees for a later hearing, if necessary.
Findings Of Fact The parties have stipulated that Respondent is an "employer" and Petitioner is a "person," within the meaning of Section 760.02. Respondent is an African American female. Respondent employed Petitioner as a phlebotomist. She was hired on December 28, 1987, as a phlebotomist for International Clinical Laboratories, which was acquired by Respondent in 1988. While employed for Respondent and its predecessor, Petitioner worked at the main facility adjacent to Tallahassee Community Hospital. A phlebotomist collects blood and urine, supervises specimen collection, provides off-site service when needed, and completes associated paperwork. The job requires bending and stooping when collecting specimens and sometimes requires physically subduing combative patients. Petitioner took short-term disability leave from September 16 to October 16, 1991. Three months later, Petitioner injured her knee on January 12, 1992, when she bumped it into a cabinet at work. She took a couple of days off for this injury. On April 12, 1992, Petitioner injured her lower back while taking blood from an uncooperative patient. She sought treatment from Dr. Robbie G. Hansen, a chiropractic physician. Dr. Hansen gave Petitioner no orders concerning work, which she continued to attend, even though she was in pain. At the same time, Respondent was beginning to address some problems experienced by several phlebotomists, including Petitioner, in maintaining the chain of custody of specimens. Respondent's supervisors counselled several such employees, including Petitioner. On May 5, 1992, Deborah Glee, an African American female, counselled Petitioner orally for a mistake in the collection of a urine sample taken as part of a drug screen. On June 24, 1992, Dr. Harold Panzik, a white male who is the general manager of Respondent's facilities in northwest Florida, counselled three employees, including Petitioner, for mistakes in maintaining the chain of custody of urine samples. A week later, Ms. Glee counselled Petitioner for another chain-of- custody mistake. On July 15, 1992, Petitioner refused to perform a specimen collection for Tallahassee Community Hospital, Respondent's most important client. She caused a disruption in front of patients and coworkers. On the same day, Pete Lowhorne, a white male supervisor, issued Petitioner a written warning for an error in the collection of urine samples for drug screens. On August 3, 1992, Dr. Hansen advised Petitioner to discontinue working for a week in order to obtain relief from the pain from which she had been suffering. He intended to reevaluate her in a week to determine if her condition had improved. He wrote her a doctor's excuse from work for one or two weeks. Respondent placed Petitioner on short-term disability leave. Under Respondent's policy, as expressed in the employee handbook given to Petitioner previously, an employee begins short-term disability leave after five days' absence due to injury or illness. Short-term disability leave may extend up to 130 working days, at which time the employee becomes eligible for long-term disability leave. Long-term disability leave is then available. While on short-term disability leave, Petitioner received rehabilitation services from Maria Halpin, who was the rehabilitation counsellor for Respondent's workers' compensation carrier. Ms. Halpin scheduled medical examinations for Petitioner with Dr. Antolic and Dr. Bellamy. Dr. Hansen released Petitioner to return to work on August 19, 1992, with limited bending and stooping. Instead of returning to work, Petitioner sought treatment from Dr. Pierce Jones, an orthopedist. Dr. Jones first saw Petitioner on August 24, 1992, and he dismissed her on September 9, 1992, after determining that he could do nothing more for her. Petitioner then returned to Dr. Hansen, who referred her to Dr. Antolic, who, in November, advised Petitioner that she could return to work. Petitioner also saw Drs. Willis and Hoffman at the Spinal Testing and Strength Center. They excused her from work, but released her to return to work on November 11, 1992, provided that she not lift more than 25 pounds, engage in any prolonged bending, or work more than four hours per day for the first week. Ms. Halpin helped design a plan for Petitioner to return to work gradually. The schedule called for Petitioner to work two to four hours daily the first week, four hours daily the second week, six hours daily the third week, and, if able, eight hours daily the fourth week. For the first two weeks, Petitioner was to work in a less physically demanding position as a receptionist and then return to her job as a phlebotomist. Dr. Panzik created the receptionist job for Petitioner, who would thus have, during the first two weeks, only occasional phlebotomy duties. Before Ms. Halpin's plan was implemented, Petitioner returned to work as a phlebotomist on November 11, 1992. She worked parts of a couple of days that week. Petitioner returned to work under Ms. Halpin's plan on Monday, November 16. She found that she could not sit prolonged periods in the new position as receptionist. She worked a few days, but never more than two or three hours during a single day. Feeling unable to work in any position, Petitioner last worked for Respondent on November 27, 1992. On that day, she visited Dr. Hansen, who felt she could return to work and referred her to Dr. Antolic. On December 3, 1992, Petitioner returned to Dr. Antolic. Discovering Ms. Halpin with Dr. Antolic upon her arrival, Petitioner became angry, confronted both of them, and dismissed Ms. Halpin from her case. On that day, Dr. Antolic concluded that Petitioner just does not have enough objective findings to limit return back to work. I feel she is able to go back to light-duty work 4 hours per day until 01/01/93. At that time she should be able to tolerate full duties with limitations of no lifting greater than 25 pounds. I explained to her that she should be able to go back to light- duty work, but she became extremely unhappy, stood up and walked out of examining room saying "this is not why I came from Quincy." Unfortunately, it appears that I have nothing more to offer this lady and I will give her maximal medical improvement as of 01/01/93 with a 3.5 percent impairment as a whole person based on her present physical findings. The patient was not given an appointment for re-evaluation. At the same time, Petitioner was seeing her personal physician, Dr. Whiddon, for unrelated problems with her knee and blood pressure. Dr. Whiddon gave her an excuse from work for these problems for November 19 and 20, 1992, and January 1-11, 1993. This was the only doctor's order excusing Petitioner from significant periods of work that she possessed after her return to work in November. At the request of her attorney, Petitioner sought another opinion from Dr. Bellamy. On January 22, 1993, Dr. Bellamy found "[n]o abnormality found other than obesity. My suggestion is that she lose a lot of weight and exercise vigorously on a regular basis. I would expect her to continue to complain of pain." By the time of the last visit with Dr. Bellamy, Drs. Jones and Antolic had also dismissed Petitioner as a patient. After her unsuccessful return to work in November 1992, Petitioner's employment relationship with Respondent became attenuated. She did not supply her employer with doctors' excuses because most of the time she did not have any. She spoke to Dr. Panzik's assistant two times and possibly to Dr. Panzik, but neither of them assured Petitioner that she could return to her job. In January, Petitioner called Mr. Lowhorne and promised him a doctor's excuse for her knee. He referred her to Dr. Panzik's assistant, with whom Petitioner discussed the possibility of more sick pay for the new year. When the assistant told Petitioner that she was ineligible for more sick pay, Petitioner asked about resigning in order to obtain the balance of a profit-sharing account. After thinking about the option, Petitioner told the assistant that she would not resign until she had spoken to her attorney. In January, Brenda Oxley, Respondent's human resources supervisor located in Tampa, discovered that Petitioner had not returned to work after being released to do so. Unaware that Petitioner had not remained at work following her short-lived return in November, Ms. Oxley contacted Dr. Panzik and the workers' compensation carrier and learned of the upcoming January 22 appointment with Dr. Bellamy. Following receipt of Dr. Bellamy's report, Ms. Oxley and Dr. Panzik decided to terminate Petitioner. The employee manual states: for employees who have medical limitations which prohibit them from performing their normal job, an attempt will be made to provide a temporary work assignment suitable to these medical restrictions [and i]f you decline a temporary work assignment, it will be considered a voluntary termination of employment. The manual elsewhere adds: refusal to cooperate in training, rehabilitation, temporary work assignment or placement efforts, when offered will result in disqualification for disability benefits and the employee will be considered to have voluntarily resigned employment effective the last day for which [short-term disability] benefits were approved. By letter dated January 27, 1993, Ms. Oxley informed Petitioner that she was terminated effective February 1, 1993, unless she could produce more information from a doctor by February 1. Petitioner received the letter on February 1, but did not provide such information to Ms. Oxley, Dr. Panzik, or anyone else at Respondent's offices. As of February 1, 1993, Petitioner remained unable or unwilling to return to work as a phlebotomist or any other available assignment. After that date, Dr. Panzik hired Petitioner's temporary replacement, a white female, as a permanent employee. Doubtlessly, Ms. Oxley was not always aware of developments concerning Petitioner after her unsuccessful return to work in November. It is unclear exactly when Petitioner came off short-term disability leave, and it is likely that Ms. Oxley and Dr. Panzik did not come to a common understanding on this point until they spoke after receiving Dr. Bellamy's final report. It is clear, however, that several doctors saw Petitioner, and they all dismissed her and released her to return to work. It is also clear that Petitioner did not return to work, except for a short time in November. These factors, coupled with repeated performance counselling of Petitioner by an African American female supervisor, tend to preclude a finding of discrimination based on race or handicap, even if Petitioner's termination were deemed involuntary. The time had come for Petitioner to return to work or, if unable, pursue other legal remedies available to all other employees claiming to be injured on the job or wrongfully deprived of contractual disability benefits. Petitioner cites two factors as evidence of discrimination. The first is the handling of another employee, Deborah Tinter, a white female, who was allowed to take short term disability. Petitioner used Ms. Tinter for a dual purpose. In addition to being offered as an additional victim of discrimination due to disability, Ms. Tinter was offered as the beneficiary of racial discrimination. Counsel chose not to disclose the nature of Ms. Tinter's afflictions or injuries, except for a minor injury. This appeared to be a commendable attempt to spare the witness embarrassment. However, as the hearing officer warned during the hearing, it is difficult to compare the treatment given Petitioner and Ms. Tinter by Respondent without understanding the natures of their disabilities. But, regardless of the nature of Ms. Tinter's disability, there is no evidence in the record to suggest that the disabilities and impairments arising from Ms. Tinter's afflictions or injuries were in dispute. In this important respect, Ms. Tinter's situation differed from Petitioner's situation and merited different treatment by Respondent. Petitioner also attempted to show that other African American employees were subjected to racial discrimination by Respondent. Several such employees testified that they were victims of racial discrimination. Necessarily, the evidence of discrimination concerning several other employees was summary. It is possible that one or more of these persons in fact have been victims of racial discrimination. However, based on the abbreviated records presented on each such person, Petitioner did not prove that these persons were victims of race discrimination by Respondent. Sometimes, the alleged facts did not establish prima facie racial discrimination. In each case, based on the testimony of the alleged victim, it is at least as likely as not that legitimate, nondiscriminatory reasons existed for the complained-of acts or omissions.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on May 24, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 24, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 6-7: rejected as subordinate. 8-9: adopted or adopted in substance. 10-12: rejected as subordinate, except that Dr. Jones saw Petitioner and later dismissed her. 13: adopted or adopted in substance. 14: rejected as subordinate. 15-17: adopted or adopted in substance. 18: rejected as subordinate. 19-21: adopted or adopted in substance. 22: rejected as unsupported by the appropriate weight of the evidence. 23: adopted or adopted in substance. 24-25: rejected as recitation of evidence. 26: adopted or adopted in substance, but not for the continuous period in question. 27 (first sentence): rejected as irrelevant. 27 (remainder): rejected as unsupported by the appropriate weight of the evidence. 28: rejected as unsupported by the appropriate weight of the evidence, except for last sentence, which is adopted or adopted in substance. 29-30: adopted or adopted in substance. 31 (first sentence): adopted or adopted in substance. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence. 33: adopted or adopted in substance. 34: rejected as unsupported by the appropriate weight of the evidence, except for learning that her short term disability did not recommence in the new year. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37: rejected as subordinate. 38: rejected as irrelevant. 39: rejected as unsupported by the appropriate weight of the evidence. 40-46 (first two sentences): rejected as irrelevant. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 47 (second sentence): rejected as irrelevant. 48: adopted or adopted in substance. 49-53: rejected as irrelevant. 54: adopted or adopted in substance. 55-57: rejected as irrelevant. 58: rejected as repetitious. 59-60: rejected as subordinate. 61-62: rejected as unsupported by the appropriate weight of the evidence. 63-64: rejected as unnecessary. 65-66: rejected as irrelevant. 67-70: adopted or adopted in substance. 71-82: rejected as irrelevant. 83: rejected as subordinate. 84: adopted or adopted in substance. 85-92: rejected as irrelevant. 93: adopted or adopted in substance. 94: rejected as subordinate. 95-110: rejected as subordinate, unsupported by the appropriate weight of the evidence, and recitation of testimony. 111 (first sentence): rejected as irrelevant. 111 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 112: rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-25: adopted or adopted in substance. 26: rejected as subordinate. 27-31: adopted or adopted in substance. 32: rejected as recitation of evidence. 33: rejected as subordinate. 34-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-43: adopted or adopted in substance. 44-45: rejected as irrelevant. 46: adopted or adopted in substance. 47-50: rejected as irrelevant. 51: adopted or adopted in substance. 52-67: rejected as recitation of evidence and subordinate 68: adopted or adopted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Marie A. Mattox Marie A. Mattox, P.A. 1333 North Adams Street Tallahassee, FL 32303 John P. McAdams Carlton Fields P.O. Box 3239 Tampa, FL 33601
The Issue Whether Respondent, Virgil and Brothers, Inc., discriminated against Petitioner, Melissa Chenevert, because of her relationship with disabled persons in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact Respondent hired Petitioner in 1999 to work as a receptionist/secretary for the front office. One of Petitioner's primary responsibilities was to "man" the front office desk, answer the phones, and to serve as the contact person for personnel working in the field. Petitioner was initially hired as an hourly-compensated employee at 40 hours per week. Approximately one year after her initial employment, Petitioner became a salaried employee. As a salaried employee, Petitioner was eligible for benefits (i.e., vacation time, sick time, and 401K participation). At a later time, Petitioner was put back on hourly compensation because she took excessive time off from work. At that time, Petitioner admitted that she was having personal problems and would try to do better with respect to meeting her responsibilities as an employee. After Petitioner was put back on hourly compensation, she continued as an hourly employee until she was terminated. During Petitioner's employment at Virgil and Brothers, Petitioner's daughter had frequent medical and counseling appointments. Petitioner had to take time off and/or adjust her work schedule to take her daughter to these appointments. At all times relevant to this proceeding, Petitioner's mother lived with her. In early March 2000, Petitioner's mother had open-heart surgery and was diagnosed with lymphoma. During the time her mother was ill, Petitioner's mother asked Petitioner if she could take one or two weeks off to take care of her. In or about February 2002, prior to her mother's surgery, Petitioner requested that she be made a part-time employee. The position occupied by Petitioner was a full-time position, and she could not be accommodated with respect to her request to become part-time. Although Petitioner was told that her request to become part-time could not be granted, she began to work as though she were a part-time employee. On many days, particularly in February and March of 2002, Petitioner would leave work early and miss whole days of work. Sometimes when Petitioner left early, she left the front desk unmanned, even though the business was still open. After her request to become a part-time employee was turned down, at some point in or about early 2002, Petitioner requested that Respondent give her a leave of absence. When inquiry was made as to how long a leave of absence she wanted, she was unable to estimate a time. A few days after requesting a leave of absence, Petitioner came to Respondent's office to pick up her paycheck and indicated that she had not reported to work because her mother was in the hospital. Again, Petitioner was asked by Respondent how much time off she was going to need. Petitioner stated that she did not know. Respondent informed Petitioner that her position could not be left open indefinitely without having some idea of when she would be coming back to work. Respondent then fired Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2004. COPIES FURNISHED: Melissa A. Chenevert 2646 Fallbrook Drive Oviedo, Florida 32765 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John D. Mahaffey, Jr., Esquire Mahaffey, Leitch & Burgunder 3113 Lawton Road, Suite 225 Orlando, Florida 32803 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to continue to receive benefits under the Florida Teachers' Retirement System.
Findings Of Fact Petitioner was employed as a school teacher in the public school system of Broward County, Florida, prior to October 1, 1989. Petitioner had been so employed for approximately 28 years and he was a member of the Florida Teachers' Retirement System. Petitioner was born January 1939 and was, at the time of the formal hearing, 52 years of age. In addition to his employment as a school teacher, Petitioner worked part-time, on weekends, holidays, and during vacations as a longshoreman at Port Everglades. On August 21, 1988, the Petitioner suffered an injury to his left ankle and leg while working as a longshoreman on the docks at Port Everglades. This accident occurred when a piece of equipment backed over Petitioner, breaking his ankle and leg. Two operations by a Dr. Smith followed the accident. Thereafter, Petitioner was treated by Dr. William A. Morris, III, M.D., a family practitioner. Petitioner applied for disability retirement benefits under the Florida Teachers' Retirement System and asserted that the injuries he suffered on the docks rendered him unable to teach. Respondent thereafter received a certification from Dr. Morris expressing the opinion that Petitioner was disabled as a result of his injuries and unable to teach school. Respondent granted Petitioner's application for disability retirement benefits in partial reliance on Dr. Morris's certification of disability. Petitioner's official retirement date was October 1, 1989, and he thereafter began to receive disability retirement benefits from the Florida Teachers' Retirement System. As part of its operations, Respondent receives computer reports from the Florida Auditor General's Office which provides information as to income earned by retirees who receive benefits under the Florida Teachers' Retirement System. From the Auditor General's report, it became apparent to Respondent that Petitioner continued to work as a longshoreman at Port Everglades. The report reflected that Petitioner was receiving income from several shipping companies at the same time he was receiving disability retirement benefits. Mark Sadler, one of Respondent's Retirement Administrators, thereafter requested that Petitioner complete FRS Form FR-13e, entitled "Retirees' Report of Continuing Disability", so that a determination could be made as to Petitioner's continued entitlement to disability retirement benefits. Petitioner gave a negative response to the following question on Form FR13-e: "Since the date of your disability retirement, or the date you last completed a Disability Evaluation Statement, have you ever been employed in any capacity?" This response was not truthful. Respondent also requested that Dr. Morris complete Form FR-13f, entitled "Physician's Report of Re-Examination" to ascertain his opinion as to Petitioner's continued disability. Dr. Morris returned the form, dated May 7, 1991, and expressed the opinion that Petitioner was still totally and permanently disabled. Dr. Morris also wrote Mr. Sadler a letter, dated June 16, 1992, expressing his opinion that Petitioner's condition was essentially unchanged from his previous indications. On July 7, 1992, Mr. Sadler informed Dr. Morris by telephone that it appeared that Petitioner had been gainfully employed as a longshoreman. Dr. Morris had not been aware of that employment and expressed the opinion to Mr. Sadler by telephone that Petitioner could teach if he could perform the duties of a longshoreman. On August 4, 1992, Respondent advised Petitioner in writing that it had determined that Petitioner was no longer entitled to disability retirement benefits. Petitioner contested that decision and requested a formal administrative hearing. This proceeding followed. Respondent thereafter took Petitioner's deposition to determine the extent of his employment as a longshoreman. In that deposition, Petitioner described his job activities and the hours he worked. Petitioner worked as a longshoreman on the docks throughout the time he was receiving disability retirement benefits. He was employed by different shipping companies in several different capacities. He worked as a porter handling luggage, he worked with a crew loading and unloading scrap iron, he worked with a crew loading foodstuffs on passenger ships, and he worked with a crew directing the operator of a gantry crane. He drove a fork lift and served as a supervisor of various crews, a position known as a "header." Prior to his own deposition, Dr. Morris reviewed Petitioner's deposition and became familiar with Petitioner's employment history since his disability retirement. Dr. Morris expressed the opinion that Petitioner was physically capable of performing the tasks required of a school teacher. Petitioner testified that he suffered from pain in his left ankle and leg as a result of the accident and that he has difficulty at times walking or standing. Petitioner was also concerned that he would be inattentive to his students at times because of his discomfort and because of the medication he takes to alleviate that discomfort and to control his diabetes, gout, and arthritis. Petitioner argues that his employment as a longshoreman does not establish that he is able to return to teaching and that he remains disabled. Petitioner presented no medical testimony to support his arguments. Based on Dr. Morris's testimony, Petitioner's arguments are rejected, and it is found that Petitioner is capable of returning to his employment as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of facts contained herein and which terminates Petitioner's disability retirement benefits. DONE AND ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-5434 The only post-hearing submittal filed by Petitioner was a letter and attachment thereto that contains argument, but not proposed factual findings. Those arguments are contrary to the conclusions reached herein and are rejected. The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Lewis B. Tunnage 450 North West 20th Avenue Fort Lauderdale, Florida 33311 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong, Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether Petitioner has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons; and, if so, whether Respondent’s intended agency action to deny her request for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Respondent is the state agency responsible for regulating employment of persons who provide direct service to APD clients. Petitioner seeks an exemption from disqualification from employment in order to work with APD clients. In a letter dated April 11, 2017, Respondent issued its notice of proposed agency action which informed Petitioner that her request for exemption from disqualification was denied. Petitioner filed a timely Petition for Formal Administrative Hearing involving disputed issues of material fact. After filing the hearing request, Petitioner joined in the response to the Initial Order, and the final hearing was scheduled on a date provided by Petitioner. Thereafter, Petitioner failed to comply with the Order of Pre-hearing Instructions and failed to appear at the final hearing that Petitioner requested. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner proved her rehabilitation from the disqualifying offense such that Petitioner would not present a danger to children or developmentally-disabled persons served in programs regulated by Respondent. Petitioner has abandoned her hearing request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner, Carla Johnson-Lane’s, request for an exemption from disqualification. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2017.
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
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 dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 30th day of November, 2009.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to a discriminatory employment action based upon his having a disability and, embodied within that question, whether he has a physical impairment which meets the legal definition of disability.
Findings Of Fact The Petitioner was employed by the Respondent, Florida Parole Commission, from July 2003 until January 29, 2007, when the Petitioner resigned. He had worked for the Respondent as a clerk on a part-time basis preparing inmate files for imaging. In October of 2003 he was promoted to records technician in charge of the imaging section. He was again promoted in 2004 to the position of Operations and Management Consultant II. He provided supervision for other employees and coordinated the work-load of the part-time workers (OPS workers) employed in the imaging section. The Respondent is an Agency of the State of Florida that determines which convicted criminals receive parole, the setting of the policies and conditions of parole and other supervised inmate release programs. It also investigates violations of supervision, establishing the terms and conditions of an inmate's release and has a reporting function to the Florida Board of Executive Clemency. On March 1, 2005, the Petitioner experienced the first of a serious of incapacitating physical episodes at work. He had to be removed from the office by ambulance for medical attention. Soon thereafter he was diagnosed as having acute dysautotonomia. Dysautotonomia is an incurable dysfunction of the autonomic nervous system, believed to be caused by a virus. The ailment include symptoms of gastrointestinal dysfunction, significant loss of blood pressure, extreme fatigue, panic attacks, as well as clinical depression. The Petitioner received emotional counseling for his depression and, according to Dr. Kepper, his treating physician, his incapacity is "intermittent and unpredictable." The Petitioner adopted a practice of sitting in his chair and elevating his feet when he had a relatively minor episode. The episodes might last for up to an hour. During a minor episode he would become extremely fatigued and dizzy, was unable to eat or speak coherently and could only lie down to rest until the episode has passed. In the event of a major episode he might experience blackouts, was unable to care for himself and required emergency medical assistance in order to receive intravenous fluids. During major episodes he would summon an ambulance, his girlfriend, or his father to take him to an emergency room for medical attention. The Petitioner's supervisor, Linda Summers, knew that the Petitioner was having these episodes and was resting in his office, prior to July 1, 2006. She allowed him to rest in his office with the door closed when he experienced a minor episode. On June 5, 2006, the Petitioner begin feeling badly and felt that he was about to "pass out." His supervisor, Ms. Summer, asked him if she needed to call an ambulance, as had been done in the past, and he declined. She was concerned about him and suggested that he sit in his office with the door closed until he felt better. Sometime between 3:30 and 4:00 p.m., that day he begin feeling better and said he was going to attempt to drive to the emergency room. Ms. Summers was concerned about his safety and tried to dissuade him. He left, however, but shortly thereafter returned and an ambulance was called to take him to the emergency room. After this, during his episodes, he adopted a practice of closing his office door and putting up a "do not disturb" sign. The Respondent accommodated the Petitioner in this practice, although he had not made a formal request for accommodation, over a period of approximately one and one-half years. The Department of Management Services (DMS) has a rule which was in effect prior to the Petitioner's hiring, which requires that an employee be absent for five consecutive days in order to be eligible to receive donated sick leave. The Respondent has followed this rule since before the Petitioner was hired and applied its standard to all employees. The only occasions when the Respondent has waived this rule-based policy for an employee, was twice in favor of the Petitioner in July and in August of 2006. On those occasions he received 132 donated sick leave hours. Even though the Respondent consistently followed this DMS requirement, it did not actually update its procedure in its personnel handbook to reflect the rule. The Respondent takes the position that if there is a discrepancy between its personnel handbook and the adopted administrative rule, then the rule controls. In any event, on October 10, 2006, the Respondent issued a Revised Procedure Directive, Number 2.02.15, entitled: Attendance and Leave. This directive updated the Respondent's sick leave policy to correspond with its actual policy and with the current DMS rules. It updated the Respondent's Americans With Disabilities Act Policy to reflect established agency policy. Pursuant to this policy (or rule interpretation) the Petitioner received donated sick leave from 18 Respondent employees, including donations from the general counsel, and from the Petitioner's supervisor, in a total amount of 273 hours. The Respondent requires a note from a physician if an employee is absent due to illness for three days in a 30-day period. The Respondent does not deem it a good business practice to waive that requirement nor did it choose to waive it as a reasonable accommodation. On June 16, 2006, the Petitioner suffered a debilitating episode at his office at around 9:00 a.m. He went into his office and put up a "do not disturb" sign for about 30 minutes. A birthday party was occurring in the office at that time and several employees commented concerning their wish to go into their offices put up such a sign and take a nap. Ms. Summers discussed this with the Respondent's Chairman, the former Director of Operations, and the former Human Resources Administrator, Beatriz Caballero. Ms. Summers was thus advised that this could not continue. She therefore talked to the Petitioner and told him that she was sorry that he felt badly but that she could no longer allow him to put up a do not disturb sign as other employees were negatively affected by it and, inferentially, she felt that it affected employee morale. Ms. Summers also established that she and the Petitioner had discussed the Petitioner's doctor's note and what it stated concerning the intermittent nature of his episodes. She told him that the doctor needed to make suggestions about what he should do when he suffers one of the episodes. She also suggested to Mr. Duncan that he probably should go home when he has one of the sick episodes. His response was that as long as he could sit down for a while and be quiet he would start feeling better and that he would hate to drive all the way home and then have to come back. He then said that he would simply go out to his truck in the parking lot and recover from an episode if one occurred. Ms. Summers told him that was an acceptable option and that it was a matter for his own decision. She also told him to be sure to tell her where he was going so that if he did not come back within a reasonable time she could go look for him. She was concerned about his condition and safety. She also told him to leave her a note telling where he had gone and the appropriate time when he left. He indicated that he would do so. At the end of June 2006, Ms. Summers informed the Petitioner that his absences were affecting his productivity and negatively affecting his supervision of the imaging section. This was because the OPS staff, mostly college students, were observed sitting around talking, talking on cellular phones, coming in late and leaving early because of a lack of supervision. It was the Petitioner's responsibility to supervise them and the situation had been deteriorating, in relation to the Petitioner's absences. Director of Operations Gina Giacomo found that the imaging section was not operating at an optimal level because the OPS employees, were undisciplined, and good productivity was not being achieved because of a lack of oversight. She attributes this, in part, to the Petitioner's habit of arriving at work at 7:00 a.m. but leaving at 3:30 p.m. After 3:30 p.m. to the end of the day his employees were unsupervised. The OPS employees were taking very long lunch breaks, leaving early and coming in late and not accounting for their work hours properly. It was the Petitioner's duty to approve the employee's time cards. As a result of the Petitioner's lack of oversight, three of the four employees were under-paid. Also, there were over expenditures as to OPS employees, resulting in a deficiency in the Agency's OPS budget, because the Petitioner allowed some OPS employees to work 35-40 hours per week when they were only supposed to work around 20 hours per week. This had an obvious adverse impact on the Agency's budgeting operations. Because of the employee attendance problems and time- keeping problems, the Respondent Agency initiated a time clock procedure for the imaging section around the end of September 2006. On August 1, 2006, the Petitioner sent the Respondent a written request entitled "Request for Reasonable Accommodation Under the Americans With Disabilities Act", requesting that: 1) he not be required to provide a physician's note when sick as it related to his pertinent disorder; 2) that he be permanently exempt from the five-day rule for sick leave donation as it related to his current disorder; and 3) that he be allowed to close his door while having a minor episode. The Respondent's Human Resources Administrator responded to this request by a memo dated August 8, 2006, declaring that the Petitioner's request to receive a permanent exemption from the five-day rule for sick leave donation eligibility was not a reasonable accommodation request and would not be granted. The Respondent also declared, through the Human Resources Administrator, that the sick leave donation policy is designed for all State of Florida employees to follow. The Respondent contends that the Petitioner's request for the Respondent to exempt him from a medical inquiry (i.e. the provision of a doctor's note or explanation for his illness and/or absence) is also unreasonable. The Respondent took the position that requiring the provision of a physician's note, as it relates to the Petitioner's current disorder, is job-related and consistent with business necessity concerning an employee's ability to perform essential job functions and whether he will be impaired by a medical condition. It is therefore important for an employee's physician to document the employee's need to be absent from work, as well as his ability to return to work and his ability to perform his job functions. The Respondent in essence took the position that while the ADA requires reasonable accommodation to enable qualified disabled persons to perform the essential functions of their jobs, that donated sick leave is not related to ADA requirements, but rather is a benefit provided under state personnel rules. The Respondent did however suggest to the Petitioner that he confer with his supervisor and work with her in trying to make up his missed hours so that he would not have to suffer so many leave-without-pay hours. The Respondent informed the Petitioner that the DMS rule involved clearly states that there is a five-day waiting period before donated sick leave can be used. It acknowledged that the Respondent's internal procedure directive did not specify the five-day rule because it was inadvertently omitted. Because of that oversight the Petitioner's last request dated July 28, 2006, was honored. Thereafter, the internal procedure directive was to be corrected by the Respondent in order to reflect enforcement of the five-day rule for sick leave donation. The Respondent informed the Petitioner that he must follow the requirement for sick leave donation requests in the future. Concerning the Petitioner's request for the accommodation of closing his door while he was having a minor episode, the Respondent told the Petitioner that the request would be reviewed further, but that the Respondent needed information from the Petitioner's physician specifying how the accommodation would assist the Petitioner in performing his essential job functions. The Respondent informed the Petitioner that the documentation needed from his physician should specify the duration the door should be closed, as well as providing any useful accommodation suggestion the doctor might have as it relates to the Petitioner's condition and his request. The general counsel for the Respondent made a determination that the Respondent should not allow the Petitioner to shut his door and remain on the premises due to liability concerns as well as concerns for the Petitioner's health. Instead of providing the requested documentation from the physician to support his accommodation request, on August 17, 2006, the Petitioner filed a Complaint of Discrimination with the Florida Respondent on Human Relations. Before filing that Complaint he never made any complaint to his supervisor concerning any perceived discrimination, or as to being treated differently due to his alleged disability. The Petitioner provided a note from Dr. Kepper, his physician, on August 21, 2006, in which the physician stated that the Petitioner was unable to perform his job from August 16, 2006 to August 30, 2006. There were multiple absences from work during that period of time, as well as abbreviated work days due to the Petitioner's medical condition and other reasons. A meeting was held on December 7, 2006, between Linda Summers the Petitioner's supervisor, the Petitioner, and the Director of Operations, Gina Giacomo. Ms. Giacomo discussed with the Petitioner the need for him to communicate better with his supervisor and for him to come to a better understanding about the importance of the "system" and people not being informed of it. She also addressed the fact that his unit was a very undisciplined unit and that the productivity was not what it should be due to lack of oversight. She attributed much of this problem to the fact that the Petitioner came into work at 7:00 a.m. and left at 3:30 p.m. She determined that there was no reason why he had to start his duties at 7:00 a.m. and changed his work hours so that thenceforth he would work from 7:30 a.m. to 4:30 p.m. with an hour for lunch. She did this in order that he might more closely supervise the part-time, OPS, college-student employees who needed more structure and oversight in the work place. Ms. Giacomo also discussed the fact that the Petitioner's supervisor, Ms. Summers, was frustrated concerning his attendance. It caused difficulty when he was absent for frequent days or partial days because it is such a small agency that it was difficult for other staff members to perform his duties with full-time duties of their own to perform as well. She therefore discussed his schedule changing, her concerns about his working more closely with his supervisor, and his need to inform all of his staff that their schedules were going to change. They were going to thereafter perform all their OPS hours between 7:30 a.m. and 4:30 p.m. and to function more as a team. She also informed the Petitioner that the time-sheets which had been used to account for his employee's work hours were not accomplishing their purpose and that all but one of the time-sheets that he had approved were incorrect. Consequently, she announced the inauguration of a punch-clock procedure for people arriving at and leaving work, so that an accurate accounting of work hours and employees' pay could be accomplished. During the discussion at the December 7th meeting, the Petitioner informed Ms. Giacomo concerning when he could address the time sheet problem, the OPS staff schedule change, and certain other issues. She wanted a time period from him as to when the matters could be cleared up and corrected. That meeting lasted approximately 45 minutes. She remained in the building except during the lunch time period that day but carried two cell phones with her at all times, her personal one and an agency-issued phone. When she got back to her office by mid-afternoon, however, the Petitioner had left with her executive assistant a medically-related form that he had to have already had in his possession before the meeting, which indicated that he would not be able to work from approximately December 4th, to January 9th. He had been present at the meeting and talked about the above-referenced issues without ever mentioning to his supervisor or to the director his need to be off from work for more than a month. He never addressed the issues he was instructed to handle with regard to the OPS employee schedule, etc., all of which finally had to be handled by Ms. Giacomo and Ms. Summers. Upon assuming her duties in September 2006, Ms. Giacomo became very concerned with the lack of professionalism and the management of the imaging section under the Petitioner's supervision. She had four different meetings to try to determine a division of the duties of the Petitioner's position which could be performed by other persons in the office who also had their own full-time duties, because of the Petitioner's absences. Over the course of four or five meetings she re-arranged and re-assigned the functions of the office, on an informal basis, so the functions the Petitioner normally would be responsible for were being taken care of by other staff members. The Petitioner never actually requested assignment to other duties in the Agency as an accommodation. Ms. Giacomo, however, as found above re-assigned functions of his position to other people. She had a meeting with all OPS workers and the permanent, full-time staff and announced that she wanted the Petitioner to be able to be at the meeting, but that it had already been delayed for two weeks because of his absence, and that she needed to proceed and restore the full functioning of the office. She announced that he would not be coming back to his supervisory position but would be greeted "with open arms." She also announced that the Petitioner would be given the same amount of pay, with the same job title, but would be re-assigned to as yet undetermined duties with the Agency. She then informed everyone what each person was going to be doing in terms of performing parts of the functions of the Petitioner's position, so that the office and Agency could function better. On January 16, 2007, the Petitioner provided a note from Dr. Kepper excusing him from work beginning January 10, 2007, stating in effect that he should be excused from work from that date forward until Dr. Kepper could determine whether he was fit enough to resume his normal duties. Due to his medical condition and treatment the doctor stated that the Petitioner was unable to perform his regular duties and would continue to be treated. The doctor stated that the Respondent would continue to be provided updates on the Petitioner's work status, but that the Petitioner, at that time, would have to be placed on out-of-work employment status. Thereafter, on January 29, 2007, the Petitioner submitted his resignation letter. The Petitioner was never terminated nor was he asked to resign by the Respondent. No disciplinary action had ever been taken against him. The Petitioner never asked the Respondent concerning the possibility of being moved to another job or position within the Agency. The evidence shows that between March 2005 and January 2007, the Petitioner worked 3,674.25 hours out of 4,064 regularly scheduled work hours.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the party, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 21st day of September, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2007. COPIES FURNISHED: Wilton B. Duncan, III 2728 Oakleigh Court Tallahassee, Florida 32399-2350 Bradley R. Bishoff, Esquire Florida Parole Commission 2601 Blair Stone Road, Building C Tallahassee, Florida 32399-2450 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
