The Issue At issue herein is whether or not the Petitioner's suspension of Respondent on March 6, 1979, 1/ from his employment duties without pay based on conduct set forth hereinafter in detail, was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence introduced, the arguments of counsel and the entire record compiled herein the following relevant facts are found. Otha Reddick, Respondent, was employed by the Leon County School Board, Petitioner, as a Systems Analyst during November of 1974, a position he held until his suspension on March 6. His rate of pay at the time of his suspension was $1,326.00 per month. On April 11, Petitioner's superintendent, Dr. N.E. (Ed) Fenn, filed a Notice of Charges against Respondent. At its meeting of April 17, the School Board referred the matter to the Division of Administrative Hearings for a formal hearing pursuant to Section 120.57(1)(a), Florida Statutes. The Notice of Charges alleged in pertinent part that: Respondent, Otha Reddick, was absent from work for the period February 15 through March 2, during which period he willfully neglected his duties at the Data Processing Center. On or about March 1, Respondent committed misconduct in office in that he represented to his supervisor, Ott Carraway, that because of medical reasons he was unable to return to work when, in fact, he was operating a private business, Top Bookkeeping Services, during regular school work hours. The Respondent, Otha R. Reddick, is guilty of willful neglect of duties and misconduct in office in that he operated a private business, Top Bookkeeping Services, during regular school work hours. Based on these charges, the Petitioner seeks to convert its suspension of Respondent into a permanent termination of his employment. Respondent's duties as a Systems Analyst with Petitioner included supervising programmers in the Data Processing Center. His work hours consisted of a normal eight hour day. In addition to his employment by Petitioner, Respondent owned two businesses: Top Bookkeeping Services, a business engaged primarily in the preparation of tax returns and related bookkeeping functions; and Twin Oaks Production, a company involved in the promotion of bands and live burials. Respondent's operation of and duties connected with his ownership of Top Bookkeeping Services occurred after his regular hours of employment by Petitioner. Respondent used what is commonly referred to as seasonal or casual employees on an as needed basis for the operation of Top Bookkeeping Services. According to Respondent, the bookkeeping service has been operating at a loss since its inception. Respondent utilizes a similar employment arrangement in his operation of Twin Oaks Productions. On the morning of February 13, Respondent, while at work, became visibly upset when he was advised by his supervisor, Ott Carraway, that the payroll function of the Data Processing Center would be contracted out to a private agency. Respondent disagreed with this decision and made known his disagreement, since in his opinion, the Data Processing Systems Division was capable of and had in fact been properly carrying out the payroll functions for the School Board. Before leaving for his lunch break on February 13, Respondent Reddick inquired of the production control and leave clerk, Janet Guthrie, the amount of accrued sick and annual leave he had. During his lunch break, Respondent went home, took two Valium pills (one more than his prescribed dosage), laid across his bed and went to sleep. Before doing so, Respondent summoned to his apartment for medical assistance Theresa Fountain, his secretarial assistant at Top Bookkeeping Services. Then Ms. Fountain arrived at Respondent's apartment, she noticed that he was visibly upset, was red in the face, appeared stressed and his speech was slurred. Ms. Fountain, a former hospital employee assigned to a psychiatric ward, related that Respondent exhibited symptoms of a person suffering a nervous breakdown (TR. 208-210). After a few minutes, Ms. Fountain was able to get Respondent calm and they discussed the problem relating to the letting of the payroll function to a private entity. She suggested that the Respondent get some rest. Ms. Fountain was aware of Respondent's ulcer disease and stomach problems and phoned Respondent's daughter-in-law in Bonifay. Ms. Fountain asked Respondent's sons to come to Tallahassee (from Bonifay) to get medical attention for their father. Ms. Fountain phoned Respondent's supervisor, Ott Carraway, and informed him that in view of Respondent's nervous condition, she was of the opinion that he needed medical attention and, therefore, would be unable to return to work. Respondent's sons, Douglas and Ronald Elvin Reddick, drove to Tallahassee the evening of February 13 to pick up their father. Respondent's sons drove to Tallahassee in a van which has a sofa bed in the rear that Respondent used to lie down on for the trip to Bonifay. Upon arrival at Respondent's apartment, his sons assisted him out of the bed to the van. Respondent slept most of the entire trip from Tallahassee to Bonifay. Respondent spent the following day, February 14, lounging around his house in Bonifay, where he remained until approximately 10:00 p.m. the following day. He then drove to the Dallas-Ft. Worth, Texas, area accompanied by Country Bill White, the person used in the live burials. While in the Dalla-Ft. Worth area, Respondent spent the next two evenings enlisting support in the form of pledges from local tavern owners and selling magazine subscriptions and newspaper ads to finance the live burial act. During the next few days, Respondent drove to Houston, Texas, to visit his brother. He remained in Houston two days and returned to the Dallas-Ft. Worth area. The live burial which was then scheduled to take place in the Dallas-Ft. Worth area was postponed due to inclement weather. In this regard, the evidence revealed, and Respondent admitted, that he had planted to request leave to attend the live burial act in Texas on the scheduled dates of February 22 and 23, 1979. Respondent credibly testified that he had no planned (active) role in the scheduling of the live burial act. (Testimony of Respondent and his sons, Douglas and Elvin Reddick. TR. 172-176.) When the live burial act took place, Respondent was not present in Texas. On Sunday, February 25, Respondent drove to New Orleans where he briefly frequented several bars. He later drove to Bonifay, where he arrived at his home at approximately 9:00 p.m. He remained in Bonifay until the following morning, when he returned to Tallahassee. On Monday, February 27, Respondent phoned his supervisor, Cecil "Ott" Carraway, to inquire if he could pick up his paycheck. A lengthy telephone conversation ensued between Respondent and Supervisor Carraway during which conversation Respondent was advised by Carraway that in view of his protracted absence, he (Carraway) would be requiring Respondent to secure a doctor's excuse to substantiate his illness before his paycheck would be released. Chapter 6 GX 37-2, Rule 2.14(7), Florida Administrative Code, Leon County Rules and Regulations. Respondent explained to supervisor Carraway that it was necessary for Respondent to receive his paycheck inasmuch as he had requested and was granted leave by Centel, through the close of business on February 27, to pay his telephone bill or his service would be interrupted. Supervisor Carraway stood fast on his insistence that a doctor's excuse be submitted before releasing Respondent's paycheck. it was not until the following day, February 28, that Respondent was able to obtain a doctor's excuse from his regular physician, Dr. Norbert J. Wegmann, of Chipley, Florida. Respondent's residence phone service was interrupted by Centel on February 27 and was not restored until March 3. During the period when Respondent's phone service was interrupted, he used his office phone at Top Bookkeeping Services. During the conversation between Respondent and Supervisor Carraway on February 28, Respondent requested an additional two days leave. There is a dispute with regard to the type of leave Respondent requested and supervisor Carraway granted February 28. Respondent's version is that he simply requested time off, whereas supervisor Carraway's version is that he explained to Respondent that he had exhausted his sick leave and, therefore, it was necessary for him to use one day of annual leave which he had recently been credited with as of March 1. On February 27, Respondent spent most of the day lounging around his apartment. The next day Respondent went to his office at Top Bookkeeping Services (located at Park Twenty West) to have access to a phone and to begin work on his personal income tax return. On March 1, Respondent, while on what he considered to be annual leave status, prepared an income tax return for Mr. and Mrs. Ward, employees of Petitioner's key punch operations. The return was completed approximately 8:00 p.m. On the afternoon of March 1, Respondent received a telephone call from Charles Johnson and Linda Jordan, employees and agents of Petitioner, who scheduled an appointment to get their tax returns prepared at Top Bookkeeping Services during the afternoon of March 2. Employees Jordan and Johnson used the fictitious name of "Susie Jones" to secure the appointment. On March 2 Linda Jordan, Director of Personnel, and Charles Johnson, the then Director of Employee Relations, for the Leon School District, visited the offices of Top Bookkeeping Services at the agreed upon time. Another employee of Respondent's at Top Bookkeeping Services had been assigned to prepare the tax returns for "Susie Jones", who later turned out to be Petitioner's employees, Jordan and Johnson. The most that can be said about Respondent's presence at Top Bookkeeping Services is that he was in fact present. There were no customers at Top Bookkeeping Services at the time, nor did attorney Johnson, who testified, indicate that the Respondent even appeared to have been preparing tax returns when he and Director Jordan visited the Top Bookkeeping Services office (TR. 117). Attorney Johnson did not see what Respondent was in fact doing other than the fact that he was simply present. Attorney Johnson explained to Respondent that he thought that his job might well be in jeopardy by his presence at Top Bookkeeping Services while he was on leave. Attorney Johnson suggested that Respondent talk to Dr. Fenn about his presence at Top Bookkeeping Services. Respondent, being concerned about his job security expressed reluctance to visit the Superintendent with attorney Johnson and the Personnel Director present without the advice and assistance of his attorney. Respondent, attorney Johnson and Personnel Director Jordan could not come to an acceptable procedure to counsel with Dr. Fenn and Respondent remained at Top Bookkeeping Services. Attorney Johnson discussed the matter with Dr. Fenn and they jointly decided that Respondent should be suspended inasmuch as there was a "breach in Respondent's obligation to the School Board since he was working on other duties during school hours." Respondent was not given a copy of the Notice of Charges prior to the March 6 School Board hearing. The Board suspended Respondent at its March 6 meeting, which suspension remains effective. Norbert Wegmann, M.D., is a General Practitioner in Chipley, Florida, and was received as an expert in medicine for this proceeding. Dr. Wegmann has been treating Respondent for anxiety, tension, fatigue and irritability since approximately 1968. During this period, Respondent has undergone family and marital stresses and Dr. Wegmann has prescribed tranquilizers and analgesics for his (Respondent's) ulcer and stomach disorders. Dr. Wegmann suggested that Respondent work at a slow pace; take time off and generally do things which permit him to put his mind at ease and to remain in a relaxed condition at the onset of anxiety and stress (TR. 149). Dr. Wegmann considered that Respondent's taking time off from work would have been consistent with his prescribed treatment for Respondent. Although Dr. Wegmann last examined Respondent physically (during times material) approximately November of 1977, he sent Petitioner a written excuse to substantiate his authorization of Respondent's absence during the period involved herein based on his knowledge of Respondent's medical condition. (Testimony of Dr. Wegmann, TR 142, 143.) Janet Guthrie, Petitioner's production control clerk, is in charge of maintaining leave records and answering incoming phone calls. Ms. Guthrie reviewed Respondent's leave record before lunch on the morning of February 13, 1979, and advised Respondent that he had approximately ten (10) days of sick leave accrued at that time. At the beginning of March, 1979, Respondent earned an additional day of vacation and sick leave. Employees are permitted to call in to request sick leave. (Testimony of Janet Guthrie and Supervisor Carraway.) Dr. Ed Fenn, Petitioner's Superintendent of Schools, is the administrator and manager of the Leon County School District. He became familiar with Respondent based on conversations with supervisor Ott Carraway, to the effect that Respondent was taking sick leave to take care of his private bookkeeping services. Dr. Fenn considered that Respondent was absent without leave based on information gathered through Ott Carraway and the visits by attorney Johnson and Personnel Director Linda Jordan's visit to Respondent's bookkeeping service. Supervisor Carraway recommended that Respondent be suspended effective Monday with pay until a recommendation could be made to the School Board for a suspension without pay. Attorney Johnson delivered the suspension letter to Respondent. (Petitioner's Exhibit 1). Dr. Fenn acknowledged that Petitioner has no rule which prevents its employees from conducting personal business during non-working hours. Nor is there a rule which prevents employees from doing personal work during their vacation time. Dr. Fenn also made clear that the Board does not concern itself with the activities of its employees while they are on vacation leave. 2/ He also pointed out that when an employee exhausts all accrued sick leave, the leave category is switched to either vacation leave or leave without pay. In this regard, Respondent was not paid for leave taken on March 2, 1979. (Testimony of Dr. Fenn and Supervisor Ott Carraway.) Ott Carraway, Petitioner's Data Processing Director, is in charge of operating the computer center and supervising employees of the computer center. Carraway has known Respondent professionally approximately eight years and recommended that he be hired. Supervisor Carraway, in explaining Petitioner's leave procedures, related that leave requests must be approved in advance, with the exception of sick leave. On February 13 at approximately noon, Theresa Fountain phoned supervisor Carraway and explained that Respondent was suffering from a nervous condition and, therefore, needed time off. This was, of course, the date that supervisor Carraway advised Respondent that the payroll function of the computer center was being transferred to an outside agency. Supervisor Carraway considered the request by Ms. Fountain to be a request from Respondent for sick leave, and the request was granted. According to Carraway, when Respondent, much like other employees, are absent, their work loads are distributed among other employees. Supervisor Carraway received confirmation of Respondent's illness from Dr. Wegmann on March 1, at which time his check was released. Supervisor Carraway considered Respondent's leave request for two additional days on February 28 to be a request for sick leave based on Respondent's discussion of his nervous condition. Respondent, in the usual situation, would have been placed on annual leave when his sick leave was exhausted. Supervisor Carraway surmised that Respondent was abusing his sick leave when he heard that Respondent had filed tax returns for two employees who worked in the Data Processing Center during the evening of March l. At supervisor Carraway's instigation employees Charles Johnson and Linda Jordan made an appointment through a fictitious name to get their tax returns prepared at Top Bookkeeping Services during the afternoon of March 2. After the visit by employees Johnson and Jordan to Respondent's offices at Top Bookkeeping Services, supervisor Carraway was made aware of Respondent's presence at the offices at Top Bookkeeping Services and recommended that he be suspended for misuse of sick leave. This recommendation was acted upon by Superintendent Fenn, which resulted in formal action by the School Board on March 6, 1979. Prior to this incident, supervisor Carraway has never requested employees to bring in a medical excuse to document their sick leave. Supervisor Carraway knew of no rule or regulation promulgated by Petitioner which required that an employee on sick leave be confined to bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Leon County School Board reinstate Respondent, Otha Reddick, to his former position as Systems Analyst (or a substantially equivalent position) effective March 2, 1979. That the Respondent be made whole for all losses of earnings he suffered as a result of the suspension less interim earnings, plus interest at the rate of eight (8 percent) percent per annum. 5/ That Respondent's leave records be credited with the appropriate amounts reflective of the leave and other employee benefits he would have earned but for his suspension of March 2, 1979. That Respondent's personnel folder be expunged of all records relative to the suspension. RECOMMENDED this 8th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent has been a permanent full-time employee of petitioner's for over 22 years and at the time of the alleged abandonment was employed as a Engineer Technician III in petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphreys' jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and respondent, the position of survey crew chief. Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work before the end of this 6 months leave of absence without pay. The record does not reflect when respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3). Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 25, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 petitioner placed respondent on unauthorized leave of absence without pay. On September 27, 1984 petitioner was advised by Roger Tanner, respondent's probation officer, that respondent had bean incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify respondent that he had been placed on unauthorized leave without pay on September 27, 1984 until October 4, 1984 when petitioner delivered to respondent a letter from Skinner advising him that he had abandoned his position with the petitioner. Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983; (3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984. The evidence reflects that respondent had a "drinking problem" of which petitioner was aware but did very little "counseling" with respondent in this regard. On October 1, 1984 Mr. Markham, Humphreys Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that respondent's "problem would be resolved in a few days" or at least "by the weekend." Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because respondent did not have a valid driver's license. Walter H. Skinner had been delegated authority to take this type action against respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that it be found that respondent did not abandon his position and resign from the Career Service as contemplated under Rules 22A-7.1O(2)(a) and 22A-8.O2, Florida Administrative Code and that respondent be reinstated to his position of Engineer Technician III as of September 27, 1984. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Donald K. Hudson, Esquire Post Office Box 948 Jasper, Florida 32052 Daniel C. Brown Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paul A. Pappas Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel 562 Hayden Burns Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Burney was employed by HRS until 5:00 p.m. on September 28, 1988, when she was deemed to have abandoned her position. Her regular working hours were 8:00 a.m. to 5:00 p.m., Monday through Friday. Burney was not at work on September 26, 1988. She maintains that she had someone call in for her to inform HRS that she would not be in that day. Burney does acknowledge that her supervisor, Sherry Martin, told the caller that she could not approve leave for that day. Burney did not report for work on September 27, 1988. Burney called her office and spoke with another clerk, not with her supervisor. Her supervisor was unavailable and the clerk did not have the authority to approve leave. Burney again failed to report for work on September 28, 1988. She called in and spoke with Mrs. McClenton, another supervisor. Burney informed Mrs. McClenton that she had a drug problem which was why she had not been at work. Burney asked her where she could get some help for her problem. Burney was told that her supervisor could not help her and that she would have to get help on her own. On October 4, 1988, HRS sent Burney a certified letter advising her that her absence from work on September 26-28, 1988, was not authorized and that she was deemed to have abandoned her position and to have therefore resigned from Career Service, effective 5:00 p.m. September 28, 1988. On October 7, 1988, Burney returned to her office seeking her paycheck. She was told by the personnel office that leave was not approved for that period and that she was no longer employed there. Burney did not report for work on any day between September 26 and October 7, 1988. She had not requested leave on a leave request form and no leave was authorized by her supervisor for this period. Burney knew that she was not on approved leave and had been told that her supervisor would not approve leave for that period. Leave is only authorized when it is requested on an appropriate leave request form and is approved by a supervisor. Rule 22A-7.010(2), Florida Administrative Code, provides: An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service...
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order and therein find that Angela B. Burney has abandoned her position, deem that Angela B. Burney has effectively resigned from Career Service, and dismiss the petition for review. DONE and ENTERED this 20th day of February, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 20th day of February, 1988. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Angela B. Burney 1585 West 35th Street Jacksonville, Florida 32209 Scott D. Leemis Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
The Issue The issue to be resolved concerns whether the Petitioner received, and should be compelled to repay, an alleged salary overpayment of $1,306.09.
Findings Of Fact James L. Lowery, the Petitioner, was employed by the Respondent Department, at all times pertinent. The Department employees are paid bi-weekly, with pay warrants being issued eight days after the end of a pay period. This is based on employee timesheets submitted to the Peoples’ First leave and payroll system. The payroll system will issue an employee a paycheck for the full pay period hours, if his or her timesheet is not timely submitted or if no timesheet is submitted (until a correction and re-calculation is done). That is the default posture. An employee is only paid less or a different amount than his regular salary if a timesheet is timely submitted and reflects less than a full-time number of hours of work or leave- time. Upon an employee’s separation from employment, an audit is conducted of his leave and attendance, to ensure that his final pay is correct. During the audit, the Department reviews the employee’s timesheets to determine what leave codes were used. It generates a cumulative pay report to ensure that the employee was paid correctly for each pay period. Upon conclusion of the audit, the Department sends the employee payment for any leave to which he is entitled, or, if it is determined that he was overpaid, the employee is notified of the hours and amount of the overpayment and repayment is demanded. Mr. Lowery was injured and therefore, had to be absent from work on workers’ compensation leave, starting in May of 2008, for approximately six weeks. He recovered from that injury, but did not return to work because his medication regimen for another condition interfered with his work schedule. Mr. Lowery thereupon began to use his accrued sick and annual leave. He exhausted his sick and annual leave by August 2008. He thereupon began using sick leave that he believed had been donated to him from the sick leave pool. Although he believed he was using sick leave pool leave, he actually had received donated sick leave for the period August 8, 2008 through October 30, 2008. The total amount of leave donated to him was 470 hours. Sick leave donations are not a pre-determined amount, but rather the amount an employee can receive depends strictly on how much leave is actually donated to that individual by other employees. Mr. Lowry used all the leave which had been donated to him as of November 14, 2008. Therefore, for the November 14 through November 27, 2008, pay period he had no leave left to his credit, but did not return to work. His timesheets for that pay period show that he was on “Authorized Leave Without Pay.” When the pay warrants were issued for that pay period, the system did not recognize that the Petitioner was on “Authorized Leave Without Pay” and on December 5, 2008, he was paid for 80 hours, in a gross amount of $1,162.00. Since he only had 4.75 hours of sick leave available for that pay period, he was, thus, overpaid for 75.25 hours. Between November 28, 2008, and December 25, 2008, the Petitioner did not work and had no annual, sick or other type of leave to his credit. Nonetheless, a pay warrant was issued to him on January 2, 2009, for payment for 30.75 hours. He was, thus, overpaid for that number of hours. The Petitioner’s timesheet for the period January 9 through January 22, 2009, shows that his hours were coded or entered as follows: 1.50 hours of annual leave, 1.00 hour of sick leave and 77.50 hours of unauthorized leave without pay. Although he had no annual, sick or other leave available to him, a pay warrant was issued to him on January 30, 2009, for the 2.50 hours. He was, thus, overpaid for that amount of hours. The Petitioner did not question the amounts he was paid on December 5, 2008, January 2, 2009, or January 30, 2009, because he believed he was drawing sick leave credit from the sick leave pool and that his timesheets were being taken care of by a supervisor, Otis Ray, in the Tallahassee office. After January 30, 2009, he received no more pay warrants. Upon the Petitioner’s separation from employment, the Respondent conducted the leave audit referenced above, as delineated in the Department of Financial Services’ Payroll Preparation Manual. It was thus determined that the Petitioner had been overpaid for a total of 108.50 hours for the above- referenced pay periods, due to the fact that he had used leave to which he was not entitled and because his timesheet was not timely submitted. In accordance with the Payroll Preparation Manual (in evidence as Respondent’s Exhibit 7), the amount of salary overpaid, and to be repaid, was calculated as follows: $1,013.56 for the warrant issued on December 5, 2008, $267.71 for the warrant issued on January 2, 2009, and $24.82 for the warrant issued on January 30, 2009. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. The Respondent followed those procedures in making the calculations relevant in this case. On May 29, 2009, the Respondent notified Petitioner of its position that he owed repayment of $1306.09, the total amount of the three erroneously paid warrants.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Department of Juvenile Justice requiring the Petitioner to repay erroneously paid salary in the amount of $1,306.09, pursuant to a reasonable installment arrangement to be agreed upon by the parties. DONE AND ENTERED this 24th day of November, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 James L. Lowery, Jr. 3875 Old Cottondale Road Marianna, Florida 32448-492 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact On July 8, 1986, Respondent, Department of Health and Rehabilitative Services, sent Petitioner, Shirley Johnson, a letter to confirm her separation from employment as a Human Services Worker II in Pierce Cottage, Unit II, Facility IV, at the Gulf Coast Center in Ft. Myers. At the time, Johnson was a permanent employee of HRS. Her job at Pierce Cottage was to help care for 29 severely profoundly mentally retarded persons. On or about May 6, 1986, HRS' Gulf Coast Center instituted new policies for applying for authorization for leave from work. /1 No longer would Petitioner and fellow employees be required to notify their immediate supervisor, Twila Bevins, of their absence or tardiness. Instead, the employees are responsible only to notify the group shift supervisor on duty at Pierce Cottage. The employee only advises the group shift supervisor of the employee's intent to apply for authorization for leave and the amount and time the leave would be taken. The group shift supervisor does not approve leave. Authorization for leave must be obtained directly from the immediate supervisor, Twila Bevins, by explaining the reasons for the leave request which would entitle the employee to authorization for leave. Application for authorization for leave can be made either before or after the group shift supervisor is notified. However, no leave can be authorized for an employee who did not personally give notification of anticipated absence unless the employee is incapacitated. Petitioner is a mother of six. She also cares for her father, who has heart disease, and for her mother, who is overweight and has limited mobility. After a separation she has been reconciled with her husband, who, after being out of work, is now employed and contributes to the support of the family. On July 2, 1986, Petitioner and her immediate supervisor agreed that Petitioner would have July 3 and 4 off, but would work from 6:30 A.M. to 2:30 P.M. on July 5. Petitioner also was scheduled to work on July 6, 7 and 8, 1986. During the early morning hours of Saturday, July 5, between approximately 1:00 A.M. and 4:30 A.M., Petitioner's father had a heart attack and Petitioner and her husband went with him to the hospital and stayed there while he was being cared for. When they returned home at approximately 4:30 A.M., they were told by Petitioner's mother that Petitioner's brother was in jail in Ocala and that she was very concerned about her son. At her mother's request, Petitioner and her husband agreed to drive to Ocala to bail her brother out of jail. When they arrived in Ocala, Petitioner's husband, who was driving when they arrived in Ocala, was arrested for driving with a license under suspension and was himself put in jail. Petitioner herself then had to drive back to Ft. Myers to get money to bail her husband out of jail, drive back to Ocala to bail him out, and drive her husband back to Ft. Myers, a drive of a total of approximately 600 miles. Petitioner did not work and did not call in to work on Saturday, July 5. She was absent without authorized leave. On Sunday, July 6, 1986, Petitioner called into work at 6:30 A.M. to explain to the shift supervisor why she had been absent the previous day, and to notify him that she would not be in until approximately 10:00 A.M. However, tired from her ordeal the previous day and developing a severe headache, Petitioner did not work on Sunday, July 6. She called in later in the morning and spoke to one of the women working in Pierce Cottage but did not speak to the group shift supervisor. She was again absent without authorized leave. On the following morning, Monday, July 7, 1986, Petitioner called in at 6:25 A.M. to tell the group shift supervisor she would be late getting in to work. However, her headache got worse, and the pain traveled down to her neck and down one side of her body. The pain was so severe that she was crying uncontrollably. Although she still told her husband that she wanted to go to work to avoid any disciplinary problems, he talked her into letting him telephone Pierce Cottage to say that she would not be able to work on July 7. At approximately 6:45 A.M., her husband telephoned the group shift supervisor and told him that Petitioner would not be at work at all that day because of her physical condition. On Tuesday, July 8, 1986, Petitioner still was in approximately the same physical condition. At approximately 7:00 A.M., her husband telephoned the group shift supervisor at Pierce Cottage, reported her physical condition, and reported that Petitioner would not be in to work on July 8. Petitioner's husband also reported that Petitioner would probably have to see a doctor that day. Petitioner did indeed go to the Lee County Health Department on July 8, 1986, to be seen for her physical condition. Petitioner went to the Lee County Health Department because she and her husband could not afford to pay a private doctor. When Petitioner arrived at the Health Department at approximately 2:00 P.M., there was no doctor available to see her. She left at approximately 3:00 P.M. with a note confirming the she had been at the Health Department between 2:00 and 3:00 P.M., and that she needed a follow-up appointment. Although Petitioner still was suffering from a severe headache on Wednesday, July 9, 1986, she went to work, turning in her note from the Health Department. However, upon arriving, she was advised of HRS' July 8 letter confirming her separation from her employment. After reciting the grounds upon which HRS had taken the position that Petitioner should be deemed to have abandoned her position, the letter stated: "In the event it was not your intention to resign from employment, you are instructed to immediately contact me and provide a reasonable and acceptable explanation for your unauthorized absence from your employment." Petitioner was absent without authorized leave on July 5 and 6, 1986. Petitioner was not incapacitated from telephoning her group shift supervisor on July 7 and July 8, 1986. However, under the circumstances, it was reasonable for her to have her husband telephone for her. She did not intend to abandon her position. As of July 2, 1986, Petitioner had 27 hours of annual leave and 8 hours of compensatory time in her accumulative leave records and available for use July 5 - 8, 1986. She also would earn an additional 5 hours of annual leave and 4 hours of sick leave by July 10, 1986. This would have been enough to cover her absences and permit her to be paid during her absences if authorized and approved.
Recommendation Based upon the foregoing Findings of Fact' and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order granting the petition in this case and ruling that the circumstances of this case do not constitute an abandonment of Petitioner's position. RECOMMENDED this 3rd day of November, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of November, 1986.
The Issue The issues in this case are whether Respondent engaged in an unlawful employment practice against Petitioner on the basis of disability, and whether Respondent retaliated against Petitioner in violation of the Civil Rights Act.
Findings Of Fact SLCSO is a law enforcement agency in Port St. Lucie, Florida. On April 15, 1996, Petitioner began employment with SLCSO as a corrections officer. She worked as a detention deputy overseeing inmates and was assigned to booking most of her career. Petitioner was good at her job and typically got above average on her evaluations related to her work performance. She also got along with her colleagues. After 2005, when Wesley had a conflict with Lieutenant Stephanie Lyons ("Lt. Lyons"), Petitioner began to believe that she was working in a hostile work environment and that her colleagues were out to get her at the direction of Lt. Lyons. Wesley reported and filed complaints throughout her employment whenever she believed improper behavior occurred. She reported multiple incidents, including ones where she felt employees made statements about her that were untrue. As a result, numerous investigations were conducted by her supervisors and SLCSO Internal Affairs, to which the majority were concluded unfounded. Many of the incidents Wesley reported were unsettling to her and ultimately made her depressed with anxiety, have panic attacks, and elevated her blood pressure. Lt. Lyons, Lt. Daniel O'Brien ("Lt. O'Brien"), Sergeant Jeffrey Jackson ("Sgt. Jackson"), Sgt. James Mullins ("Sgt. Mullins"), and Sgt. Johnny Henry ("Sgt. Henry") were some of Petitioner's supervisors while employed at SLCSO. One incident that has been extremely troubling to Wesley is her observation of Sgt. Jackson punching a pregnant inmate in the stomach. The incident is so upsetting to Wesley that even though she reported the incident when it occurred, she continues to be upset by the incident and continues to relive it, which distresses her. During her employment, Wesley also lost her mom and brother in the same year, 2011. The losses took an added toll on her and caused more emotional difficulties. Another major personal event that stressed Wesley was that she found out the deputy that she thought she had been in a 15-year monogamous relationship with was having an affair with another deputy on Wesley's shift. Those working conditions caused Wesley even more emotional harm. At some point, Wesley had an emotional breakdown, could not get out of bed, and even thought she no longer wanted to live. Eventually, Wesley's illnesses became debilitating, and her high blood pressure was unstable. Wesley started missing work because of her illnesses. She physically was unable to work. On June 20, 2012, after Wesley was absent five times, she was counseled for abuse of sick leave benefits in violation of SLCSO Policy 5.1.33. During the counseling, Wesley was told she "needs to achieve and maintain an acceptable level of sick time usage to improve [her] below average status. Deputy Wesley will receive a below standard on her evaluation for sick time usage." Wesley first applied for the Family Medical Leave Act ("FMLA") on September 25, 2012, but the process was not completed. On February 25, 2014, Wesley was issued a reprimand for abuse of sick leave in violation of SLCSO Policy 5.1.33 after she was absent another five days in 12 months. She was warned that "any further absences will result in continued progressive discipline." Wesley did not lose pay when she was reprimanded. On or about August 21, 2014, Wesley submitted an Intermittent Family Medical Leave Act request for her own "Serious Health Condition" to the SLCSO Human Resources Office ("Human Resources"). Wesley's application was incomplete. On October 8, 2014, Petitioner submitted the outstanding medical certification needed for the application submitted on August 21, 2014. Human Resource Manager Lori Pereira ("Pereira") denied the FMLA request on October 13, 2014, because the medical certification was submitted untimely, 52 days from the date of Petitioner's last absence. On October 22, 2014, Wesley requested reconsideration of her FMLA application, and Human Resources denied it on October 27, 2014. On March 20, 2015, Wesley requested FMLA leave again. In her application, Wesley provided a medical certification filled out by her cardiologist, Dr. Abdul Shadani ("Dr. Shadani"), which stated the patient will be absent from work for treatment "2-6 per year," and the underlying medical condition is systemic arterial hypertension ("hypertension"). "N/A" was the response Dr. Shadani supplied on the medical certification for probable duration of patient's incapacity. The hours/week section was marked intermittent. The certification box was also checked "No" after the question, "Will it be necessary for the employee to work intermittently or to work less than a full schedule as a result of the conditions?" On April 1, 2015, Human Resources approved Wesley's request for Intermittent FMLA leave due to medical reasons. The approval cycle was from August 21, 2014, through August 20, 2015. Pereira backdated Wesley's leave to August 21, 2014, the date Dr. Shadani identified as the beginning of Wesley's medical condition. The backdating converted Wesley's unexcused absences to excused absences, and she avoided additional disciplinary action for unexcused absences. SLCSO policy required that when an employee is on Intermittent FMLA leave, the employee has to call out as needed and report which type of leave is being used. The policy for taking sick leave required that employees call in two hours prior to the shift and notify your supervisor. Wesley felt it was unnecessary to have to call in so frequently. In order to maintain FMLA leave, employees are required to get renewed medical certifications for the cycles. Human Resources notified Wesley when she needed to provide a physician recertification to continue her FMLA leave. When Wesley had to get recertifications, she felt like it was too frequently and that she was being harassed. Obtaining recertifications required that Wesley pay co-pays, which she believed were very expensive since she was not working. Wesley also felt like she was being punished for using the FMLA leave benefit. During the August 21, 2014, to August 20, 2015, FMLA leave cycle, Wesley was absent approximately 444 hours. Pereira discovered Wesley's high leave rate, 444 hours, and noticed that it did not coincide with the projected two to six absences a year on the medical certification. Pereira conferred with her supervisor, Lt. Sheeler, and they decided to verify with Dr. Shadani whether the 444 hours were absences related to Wesley's underlying medical condition to which Wesley had FMLA leave approval. On August 31, 2015, Pereira wrote Dr. Shadani a letter inquiring about the 444 hours Wesley had been absent. By facsimile dated September 4, 2015, Dr. Shadani responded to Pereira's request and confirmed that the amount of absences listed in the medical certification was correct without further explanation or reference to Wesley's hypertension. On September 9, 2015, Human Resources approved Wesley's Intermittent FMLA request for the August 21, 2015, through August 20, 2016, cycle for Petitioner's own serious health condition. It was backdated to cover the dates Wesley missed back to August 21, 2015, even though the recertification was not completed until near the end of the covered FMLA period. While working at SLCSO, Wesley sought mental health counseling to help deal with her feelings about the workplace. She wanted to continue working for SLCSO and perform successfully. Human Resources decided they needed a better understanding of Wesley's condition with the extensive time she had been absent contrary to Dr. Shadani's absence projection. Pereira and Lt. Sheeler decided to request a second opinion since no detailed information was provided from Dr. Shadani. Pereira contacted Dr. Joseph Gage ("Dr. Gage"), a cardiologist and requested that he provide a second opinion. Dr. Gage was asked to review Wesley's job description and evaluate if her 444 hours of absences were reasonable for her medical condition, provide the reasoning for the number of absences from work for her medical condition, and determine if Wesley was capable of performing her job functions. SLCSO also requested that they be invoiced for the co-pay for Wesley's visit to Dr. Gage. On or about September 29, 2015, Pereira spoke with Wesley and told her she needed to go get a second opinion and that SLCSO was choosing a cardiologist, Dr. Gage, for the mandatory second opinion. That same day, Wesley received a call from Stuart Cardiology that she needed to report for a second opinion. SLCSO set up the appointment for Wesley. Wesley felt that SLCSO's making her report for a second opinion was harassment after her doctor, Dr. Shadani, had already responded to the Human Resources' request. Wesley emailed Pereira and told her "I am starting to feel punished for being on FMLA." Wesley also emailed Pereira and asked for the "specific reason(s) for your request for a second opinion." On or about October 2, 2015, Pereira responded to Wesley by email and stated: As I mentioned in our phone call a few moments ago, since Dr. Shadani's medical certification states that you would be absent for treatment for your medical condition for 2-6 times per year and due to the fact that you missed 444 hours within the past year, we are requiring this second opinion with our choice of cardiologist, Dr. Gage. On October 5, 2015, Dr. Gage evaluated Wesley. On October 9, 2015, Dr. Gage provided Human Resources his results of Wesley's evaluation. Dr. Gage was not able to confirm if the absences were from Wesley's hypertension because he did not have her blood pressure measurements during the absent dates. However, Dr. Gage was concerned about Wesley's blood pressure level and instructed Wesley not to return to work until the hypertension was more regulated. Dr. Gage also recommended Wesley expedite a visit to her cardiologist, Dr. Shadani, before being released. Wesley was released to return to work by Dr. Shadani on October 6, 2015. However, she did not provide her return to work release to Human Resources, contrary to SLCSO policy. Instead, Wesley provided the doctor's note to her supervisors. SLCSO policy requires medical clearance be provided to Human Resources if a deputy has missed more than 40 hours of consecutive work. On October 20, 2015, Kimberly Briglia ("Briglia"), the then human resources manager that replaced Pereira, called and told Wesley that a physician medical clearance had to be provided to Human Resources for her to return to work. Briglia's call was followed up by an email, and Wesley felt harassed, which she reported. On October 23, 2015, Lt. Sheeler reminded Wesley by memo that she had been sent an email by Human Resources on October 19, 2015, requesting a fitness for duty evaluation be provided by her physician. The memo informed Wesley that it was a "direct order" that she provide a fitness for duty report by November 2, 2015. Human Resources had sent previous correspondences to Wesley by certified mail that were returned unclaimed. SLCSO's practice was to have documents personally served by Civil Unit deputies when certified mail was unclaimed. Since Wesley had not been claiming her certified mail, Briglia had the SLCSO's Civil Unit personally serve Wesley at her residence with Lt. Sheeler's fitness for duty report memo dated October 23, 2015, to ensure Wesley received it because of the November 2, 2015, impending deadline. Wesley believed the personal service was harassment, and having to go to another doctor for a fitness of duty clearance was also harassment. On October 30, 2015, Wesley provided the fitness for duty report to Briglia and Lt. Sheeler. On October 31, 2015, Wesley was released to full duty without restrictions. On January 5, 2016, Human Resource Specialist Caitlyn Tighe requested Wesley provide a medical recertification to continue her FMLA leave. On January 22, 2016, Wesley provided Human Resources a FMLA medical certification signed by Dr. Shadani even though she felt it was harassing when SLCSO requested such documentation. On March 7, 2016, Wesley requested a retroactive pay increase because she believed that a deputy had received a similar pay increase and that she deserved the same. Wesley continued to believe that her supervisors were harassing her. On or about March 24, 2016, Wesley reported to Captain William Lawhorn ("Capt. Lawhorn") that she had been mistreated by Lt. Lyons yet again, as she had been doing since 2005. Wesley complained of the following problems with Lt. Lyons: Lt. Lyons assigned Sgt. Jackson over Wesley because he was "someone who feeds off of [Lt. Lyons]." Lt. Lyons tried to discipline Wesley while she was applying for FMLA leave. Lt. Lyons directed Sgt. Tom Siegart ("Sgt. Siegart") to call Wesley to let her know that she would need a doctor's note to return to work if she was out another day because she was on her third consecutive sick day. The "needs improvement" on Wesley's performance evaluation was only the rating because Lt. Lyons directed Sgt. Siegart to lower it. Lt. Lyons asked the deputies over radio communications had they seen Wesley who was late for roll call. Wesley believed Lt. Lyons was trying to embarrass her by calling her over the radio and not looking for her when she came in late. On April 19, 2016, Director of Finance Toby Long denied Wesley's request for a pay increase and explained that in 2007, Wesley had been provided an increase that corrected the discrepancy in her pay grade. He also informed Wesley that she had been paid properly since the 2007 increase. On April 22, 2016, Capt. Lawhorn had a meeting with Wesley and Lt. Lyons to discuss the March 24, 2016, complaint. Lt. Lyons agreed not to address Wesley publicly on the radio and talk with her privately going forward. Wesley declined the transfer Capt. Lawhorn offered, and Wesley and Lt. Lyons agreed they could work together. Capt. Lawhorn found no misconduct for any of the five complaints Wesley made on March 24, 2016. He found that the assignment of Sgt. Jackson was an arrangement based on need. The corrective action was moot because it was retracted when it no longer applied since Wesley's FMLA leave was backdated. He also determined that Lt. Lyons frequently used the radio to communicate all issues to deputies and was not singling Wesley out. Next, Capt. Lawhorn decided it was common practice to have a deputy call to check on another deputy about leave and to determine how to plan the work schedule. He also concluded Lt. Lyons used proper discretion when lowering Wesley's rating to "needs improvement," because Wesley had a zero sick leave balance and was tardy to work. Lastly, Wesley had been late at roll call; so, it was appropriate to look for her. Soon after the meeting, Wesley complained to Capt. Lawhorn that Lt. Lyons had discussed the meeting with Lt. Lyons' friend, Deputy Denetta Johnson ("Dep. Johnson"), and Dep. Johnson glared at her. Capt. Lawhorn followed up the complaint by investigating. He met with Dep. Johnson and found out that Lt. Lyons had not discussed the meeting with her. On May 27, 2016, Wesley provided SLCSO a Certification of Health Care Provider for Employee's Serious Health Condition signed by Dr. Shadani to continue her FMLA leave. In May 2016, Wesley's Intermittent FMLA was approved after she provided the FMLA medical recertification to Human Resources. In May 2016, Capt. Lawhorn tried to assist Wesley and found himself compiling a history of Wesley's career, including ten years of complaints against Lt. Lyons and other supervisors, reviewing her discipline and attendance history, medical condition, FMLA leave, and injuries. He evaluated Wesley's complaint that Lt. Lyons and the other supervisors were causing her undue stress and that she was being treated differently. Capt. Lawhorn discovered that Wesley had ten corrective actions for her whole tenure with the sheriff's office, which were related to neglect on-duty charges or sick leave abuse. Her record confirmed approved Intermittent FMLA leave for a personal, serious medical condition. Capt. Lawhorn's review found that Wesley's work history pattern of declining attendance, including periods without a full paycheck, started in 2013 and included: 2013, missed two full paychecks; 2014, missed one full paycheck; 2015, missed ten full paychecks; and 2016, missed four out of nine checks (YTD). Capt. Lawhorn addressed the possibility of Wesley qualifying for workers' compensation benefits because of her complaints about workplace stress, anxiety, and interactions with Lt. Lyons. Capt. Lawhorn addressed the issues in a memo to Major Tighe dated May 16, 2016. However, it was determined that Wesley did not qualify for workers' compensation benefits. By July 2016, Wesley's FMLA leave was running out. Human Resources Clerk JoLeah Rake prepared and sent a letter to Wesley to notify her that the FMLA leave exhausted July 26, 2016. The letter was returned unclaimed. Briglia determined that notifying Wesley that her leave was exhausted was an urgent matter and that she requested personal service to Wesley's residence by the SLCSO Civil Unit to ensure Wesley received the notice. On or about August 3, 2016, Wesley provided a return to work note to Briglia from Dr. Denise Punger ("Dr. Punger"), stating that Wesley could return to work on August 5, 2016. Wesley had just missed five days of work. Briglia could not determine the nature of Wesley's illness because Dr. Punger's note did not provide an explanation for Wesley's five absent days of work. Also, Dr. Punger was not Dr. Shadani, the doctor who had previously provided Wesley's medical certifications for FMLA leave. Briglia was concerned for Wesley's safety and the safety of her co-workers. On August 4, 2016, Briglia made an independent Human Resources decision and requested by letter that Wesley provide a more detailed explanation from Dr. Punger for her absences, to ensure Wesley was fit for duty to return to work. Briglia had the Civil Unit personally serve the letter dated August 4, 2016, to Wesley at her residence. On August 4 2016, Wesley called Briglia to address her displeasure with the request for details from her physician and the personal service at her residence a second day in a row. Wesley described the SLCSO actions as embarrassing, harassment, retaliation, discrimination, and a violation of her rights. Wesley informed Briglia that they were making her situation worse. Briglia told Wesley she would return her call. On August 5, 2016, together Briglia and Lt. Sheeler called Wesley back to explain that it was within SLCSO policy to verify details of medical conditions. They further told Wesley that since the release was signed by a physician other than Dr. Shadani who had previously provided the explanation for her FMLA leave medical certifications and absences, the medical reasons for the absences needed to be clarified and provided. Lt. Sheeler and Briglia also told Wesley that workplace safety was the priority that created the need for the request in order to both protect employees and to make sure SLCSO is not going against the orders of Wesley's doctor. It was also explained to Wesley that civil service was necessary because she did not claim her certified mail, she needed to be notified, and she could not return to work without a fitness for duty clearance. Wesley did not believe Briglia and Lt. Sheeler. Each request for medical documents caused Wesley additional stress. Wesley admitted at hearing that she did not claim her certified mail. Afterwards, Wesley provided a medical excuse slip from Dr. Punger, clarifying that Wesley's absences were due to migraines and high blood pressure. Human Resources allowed Wesley to return to work after receiving Dr. Punger's excuse slip. On August 22, 2016, Wesley filed a complaint against Briglia. On August 22, 2016, Wesley received a corrective action for abuse of sick leave and an informal counseling for the five sick absences in four months that were not FMLA leave related. Wesley violated agency policy by taking time off without accrued sick leave. On or about September 8, 2016, Wesley provided SLCSO a Certification of Health Care Provider for Employee's Serious Health Condition signed by Dr. Shadani. On September 19, 2016, Wesley filed a complaint regarding the August 22, 2016, corrective action. After reviewing the corrective action, Capt. Lawhorn found the corrective action appropriate and the informal discipline fair and supported by policy. Wesley did not lose pay for the discipline. On September 22, 2016, Wesley filed a discrimination case with the FCHR, alleging SLCSO discriminated against her by subjecting her to harassment and discrimination, and retaliation, for taking FMLA leave due to her disability, hypertension. On March 16, 2018, FCHR issued a Determination: No Reasonable Cause. Wesley filed a Petition for Relief on or about April 12, 2018, to contest the determination. Wesley claims in her petition that the requirement that she acquire a second opinion from Dr. Gage, the personal service to her residence by the SLCSO Civil Unit deputies to deliver correspondence, and the requirement that her physician, Dr. Punger, clarify her medical condition to return to work were harassment, discrimination, and retaliation for her utilizing her FMLA leave benefit.
Conclusions For Petitioner: Peggy F. Wesley, pro se (Address of Record) For Respondent: R. W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 30th day of August, 2019, 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 August, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) R. W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 (eServed) Peggy F. Wesley (Address of Record-eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Did the absenteeism of Respondent, Hector Marrero, amount to just cause to terminate his employment as a teacher with Petitioner, Polk County School Board (Board), under Article 4.4 of the County's Teacher Collective Bargaining Agreement (Agreement)?
Findings Of Fact Mr. Marrero worked 20 some years in Polk County schools as an art teacher. Most recently, he taught art to the students of Palmetto Elementary School for eight years. The Board employed him pursuant to a professional services contract. Mr. Marrero's home life was difficult for him and his children. This was due to his wife's substance abuse, her domestic violence toward Mr. Marrero, and her mistreatment of their children. In 2016, these problems reached a crescendo. Authorities filed criminal child abuse and domestic violence charges against Mr. Marrero's wife. In October 2016, the criminal charges were resolved by judgment that included a prohibition against the wife possessing weapons, a prohibition against the wife contacting Mr. Marrero, 12 months' probation, and random drug tests of the wife. The Department of Children and Families (DCF) intervened to help protect Mr. Marrero's minor children. This resulted in requirements for counseling, which Mr. Marrero fulfilled. In August 2016, Mr. Marrero began a dissolution of marriage proceeding. It was contentious and abusive with numerous issues related to the problems identified above. The issues included critical child custody disputes. The disputes were resolved with Mr. Marrero being given full-time custody with the children and their mother permitted only supervised visits. Throughout this period, courts issued several restraining orders against the mother. Mr. Marrero, as the sole responsible parent, cared for his daughters, ensuring their continued participation in events at their separate schools. These demands and disruptions caused the absences resulting in his proposed termination. The absences described below were to attend various court hearings, attend litigation related conferences, attend required counseling sessions, transport his daughters to events, attend their events, and other obligations arising from the legal and DCF issues created by the behavior of Mr. Marrero's wife. The Polk County school system suffers from a significant absenteeism problem. The Board employs over 13,000 people. Approximately 9,000 of them are teachers or other instructional staff. During the 2018-2019 school year, the system imposed attendance related discipline 302 times. The Polk County school system has taken several actions to improve attendance. The actions include providing training and guidance to school principals and other administrative employees to help them assist employees to manage available leave time. The actions also include promulgating guidelines for principals and supervisory personnel to address absenteeism as a disciplinary issue. A teacher's presence in the classroom is a critical part of the job. The interruption of continuity of instruction that excessive absenteeism causes compromises student learning. It also injures co-workers asked to cover the absent teacher's duties. The entire school suffers as a result. The Agreement governs the availability of paid leave for Polk County teachers. Section 20.1 of the Agreement grants four days of sick leave as of a teacher's first day of employment. After the first day, teachers earn one additional day of sick leave for each month of employment. The system credits the day to the employee at the end of each month. The maximum number of sick leave days an employee may earn during any given school year is twelve. Unused sick leave accrues from year-to-year. The Agreement does not limit the number of days that teachers may accrue. Section 20.2 of the Agreement grants teachers six personal leave days during the school year. They are drawn from the pool of total available sick days. The distinction between personal days and sick leave days is that sick leave is intended to be taken because of an employee's or employee's family's illness or other health problem. Personal days may be taken for any reason. Personal leave days are a subset of sick leave days. A teacher may take personal leave days only if sick leave days are available to the employee. If an employee is absent and has no available sick leave time, then the employee is absent without authorization. Article XXI of the Agreement governs unpaid leave. It includes a variety of categories including medical leave, educational leave, and parental leave. There is no indication that Mr. Marrero inquired about unpaid leave or that the school administration suggested that he consider it. Mr. Marrero's struggles with attendance reach back to 2016. By letter dated February 12, 2016, his Principal, Edgar Santiago, documented a verbal warning for excessive absenteeism. The Principal noted that he held a conference with Mr. Marrero on the 12th and had discussed the fact that attendance records showed Mr. Marrero had missed 18 days of work during the school year. Eight days were unpaid because he had exhausted his available leave time. The letter cautioned that it was the first step of the Progressive Discipline process set forth in Section 4.4-1 of the Agreement. The letter concluded, "It is important to note that further disciplinary action, up to and including termination, will follow if unacceptable behaviors continue." On March 15, 2016, Principal Santiago delivered another letter to Mr. Marrero. The letter was a written reprimand under Step 2 of the Progressive Discipline process. The letter noted that by then Mr. Marrero had missed 23 days of work that school year, 13 of which exceeded his available leave time. The letter referenced the Agreement's Progressive Discipline section and noted that further disciplinary action could result in termination of Mr. Marrero's employment. On March 29, 2017, Principal Santiago wrote the Superintendent of the Polk County schools and advised her that Mr. Marrero continued to miss work after depleting his available sick and personal leave days. Principal Santiago noted that Mr. Marrero knowingly missed work without available sick or personal leave. His letter stated, "I am of the opinion that Mr. Marrero's recent absences without pay is [sic] a continuing trend and just cause for further disciplinary action." Principal Santiago recommended imposition of Step 3 of the progressive discipline process, suspension for up to five days without pay. He provided Mr. Marrero a copy of the letter. On April 19, 2017, the school administration provided Mr. Marrero a letter from Associate Superintendent Teddra Porteous notifying him that he was suspended without pay for three days for his absenteeism. The letter stated specifically that the suspension constituted Step 3 of progressive discipline under the Agreement. The letter also stated that further disciplinary action could result in termination. Because of Mr. Marrero's absenteeism, Principal Santiago placed him on a Professional Development Plan, which included goals and strategies for improving his attendance. After the suspension and imposition of the Professional Development Plan, Mr. Marrero completed the 2017-2018 school year without absences exceeding his accrued leave time.1/ Mr. Marrero's attendance problems returned in the 2018- 2019 school year. Beginning in August of 2018, Mr. Marrero missed work for one-half or more days on 23 different dates. These dates do not include his absences on May 30 and 31, 2019, which were the result of his suspension after the Superintendent recommended termination of his employment. As of January 24, 2019, Mr. Marrero had exhausted his available sick leave and personal time for one-half day or more on ten different workdays. Yet he was absent five days in April. Principal Santiago wrote the Superintendent on April 30, 2019, recommending termination of Mr. Marrero. This was Step 4 of the progressive discipline process. The Superintendent accepted the recommendation. On May 29, 2019, Principal Santiago delivered a May 23, 2019, letter from Associate Superintendent Porteous to Mr. Marrero. The letter stated, "Based on these facts [absences history], and in accordance with Step IV of Progressive Discipline in Article 4.4-1-Progressive Discipline of the Teacher Collective Bargaining Agreement, the Superintendent has determined that 'just cause' exists to recommend termination of your employment to the School Board of Polk County." The letter advised Mr. Marrero of his right to request a hearing. He exercised that right. During the 2016-2018 period, Mr. Marrero had advised Principal Santiago of the serious personal problems causing his repeated absences. Principal Santiago authorized Mr. Marrero to occasionally arrive late for work or leave early. He did not authorize Mr. Marrero to take full days or half-days off without charging them to available leave. Nor did Principal Santiago have authority to do that.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order finding just cause to terminate the employment of Respondent, Hector Marrero, and dismissing him from his position with the Polk County School Board. DONE AND ENTERED this 22nd day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 22nd day of January, 2020.
The Issue Whether the suspension of the Appellant for the reasons stated in the letter of disciplinary action was for good cause.
Recommendation Based on the foregoing the Hearing Officer finds that the agency did not have cause to suspend the Appellant; however, the evidence tends to indicate that the Appellant took more leave totally than she could have accrued in 1975 and 1976. Therefore, prior to any action to reimburse her for the days she was suspended, the Hearing Officer would recommend an audit of her leave records and that she be compensated only if the audit reveals that she took no more leave than she had accrued. DONE and ORDERED this 9th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1977. COPIES FURNISHED: Douglas E. Whitney, Esquire District General Counsel Health and Rehabilitative Services 1350 Orange Avenue Winter Park, Florida 32789 Mrs. Dorothy B. Roberts Appeals Coordinator Department of Administration Division of Personnel 530 Carlton Building Tallahassee, Florida 32304 Ms. Gwendolyn Morss 1185 Lincoln Terrace Orlando, Florida 32787
The Issue Whether Respondent's employment should be terminated "for being absent without approved leave," as recommended in the Superintendent of Schools of the School District of Palm Beach County's Petition for Involuntary Resignation.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the School District. Systemwide testing programs in the School District are coordinated by the School District's Department of Research, Evaluation, and Accountability (DREA). At all times material to the instant case, Marc Baron headed DREA. DREA operates a test distribution center. Cherie Boone is now, and was at all times material to the instant case, in charge of the DREA test distribution center. Ms. Boone supervises four employees. As their supervisor, she is "responsible for [among other things, their] time and attendance." Respondent is employed as a materials handling technician with the School District. At all times material to the instant case, he was assigned to work in the DREA test distribution center under the direct supervision of Ms. Boone. As a materials handling technician employed by the School District, Respondent is a member of a collective bargaining unit represented by the National Conference of Firemen & Oilers, Local 1227 (NCF&O) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School District and NCF&O (NCF&O Contract). Article 7 of the NCF&O Contract discusses "employees['] contractual rights." It provides as follows: SECTION 1. Probationary Employees All newly hired or rehired employees may be subject to a probationary period of ninety (90) workdays. Employees who have not completed such period of employment may be discharged without recourse. Probationary employees shall not be eligible for any type of leave except accrued sick leave, annual leave, or short term unpaid leave (due to illness) not to exceed five (5) days. SECTION 2. Permanent Employees Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the NFC&O Contract addresses the subject of "[m]anagement [r]ights." It provides as follows: NCF&O and its members recognize the responsibility of the District to operate and manage its affairs in all respects in accordance with its responsibilities as established by law and as delegated by the State Board of Education; and the powers of authority which the District has not officially agreed to share by this agreement, are retained by the District. It is the right of the District to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the District to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons, provided, however, that the exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequences of violating the terms and conditions of this agreement in force. The District has the sole authority to determine the purpose and mission and the amount of the budget to be adopted by the School Board. The District and NCF&O agree that the District has and retains unaltered, its legal right to select, assign, reassign, or relocate any of its employees, and to carry out its mission under the law and State Board of Education Regulations, unless otherwise specifically enumerated herein. Except to the extent it has been done prior to May 26, 1998, no bargaining unit work which would result in the loss of jobs by members of the bargaining unit, shall be contracted out without prior consultation with the Union. It is understood that changes under this Article may not be arbitrary and capricious, and it is agreed that the District has those rights which are enumerated within Florida Statute 447; however, nothing herein shall relieve the parties of their ability to request impact bargaining. Among the "rules and procedures" that the School District, through the School Board, has established in exercising its "[m]anagement [r]ights" are School Board Directive 3.27 and School Board Policy 6Gx50-3.80, which provide, in pertinent part, as follows: School Board Directive 3.27 * * * Resignations. If employees desire to be released from their employment contract the following procedures are to be followed: * * * c. When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employee stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. * * * Suspension/Termination. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes.[2] * * * Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement. * * * 6. When a recommendation for suspension and termination is made, the procedures listed in School Board Policy 3.27 shall be followed. * * * School Board Policy 6Gx50-3.80 A leave of absence is permission granted by the Board, or allowed under its adopted policies, for an employee to be absent from duty for specified periods of time with the right of returning to employment on the expiration of the leave. All absences of School Board employees from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance by the School Board and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. No leave except military leave shall be granted for a period greater than one (1) year. A new leave application may be filed and granted at the expiration of leave, but automatic renewals of leave shall not be allowed. Leave may be with or without pay and provided by law, rules of the State Board of Education, School Board policy, and negotiated contracts. If the terms of the collective bargaining agreement differ from this Policy, the language of the employee's agreement will take precedence. The following types of leave are available for School District employees: Leave for personal reasons Annual leave for 12-month personnel Sick leave Catastrophic leave Injury or illness in-line-of-duty leave Sabbatical leave Temporary military leave Regular military service leave Professional leave and extended professional leave Charter school leave Voluntary/extended military leave Leave of absence for the purpose of campaigning for political office Personal leave including maternity/ recovery and child care Paid Leaves * * * c. Sick Leave * * * iv. An employee requiring more than thirty (30) working days of paid leave for recovery may be required to submit medical evidence at reasonable intervals supporting the need for additional leave. * * * Sick leave claims shall be honored as submitted by the employee for personal illness, as well as illness or death of father, mother, brother, sister, husband, wife, child or other close relative or member of the employee's own household. Sick leave without pay may be granted for employees who have used all accumulated sick leave, but who would otherwise qualify for sick leave. The Superintendent may require a doctor's statement of verification of illness. A request to the Superintendent for a verification of claim may be initiated by the principal or supervisor. * * * Unpaid Leaves * * * e. Personal Leave -- An employee requesting short-term or long-term personal leave shall make written application to the supervisor, stating reasons for such leave. The Board shall satisfy itself in terms of the need of the requested leave. Personal leave may be used to extend a leave of absence due to sickness when that sickness has extended beyond all compensable leave for the duration of up to one (1) calendar year when supported by doctor's statements verifying the necessity of the extended leave. An employee requesting return to duty who has served efficiently and exhibited those qualities called for in the position held prior to such leave will be given every consideration for reemployment provided the conditions of employment have been met and the request is supported by a doctor's statement certifying that his physical condition is satisfactory to return to normal duties. * * * Article 17 of the NCF&O Contract, as noted in Article 7 of the contract, deals with the "[d]iscipline of [e]mployees." It provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee’s personnel file and shall not be used to the further detriment of the employee, unless there is another reasonably related act by that same employee within a twenty-four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee’s personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension without pay shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee’s personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable laws. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Article 18 of the NCF&O Contract describes the grievance procedure available to bargaining unit members who allege a "misapplication or misinterpretation of the agreement." The described procedure consists of an "informal level" and four formal "levels," the final one being "arbitration before an impartial arbitrator, using the Federal Mediation and Conciliation Services." Pursuant to Section 4B. of Article 18, "if NCF&O decides to withdraw its support of an alleged grievance, the individual may continue to process the claim on his/her own, so long as all costs are borne by that individual"; however, according to Section 4E. of Article 18, "[a]grievance, once [actually] withdrawn, may not be reopened without the mutual written agreement between the [School District] and [the] NCF&O." "[L]eave [w]ithout [p]ay" is the subject of Article 25 of the NCF&O Contract, which provides as follows: SECTION 1. Personal Leave of Absence Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent. An employee granted an unpaid leave of absence shall be returned to his/her former classification if the leave is less than ninety (90) days, notwithstanding the layoff provisions contained in this agreement. An employee granted a leave of absence and who wishes to return before the leave period has expired, may submit a request to return to the principal/department head. An employee granted a leave of absence in excess of ninety (90) days will be permitted to return to work provided there is an opening in the same job classification in the work unit. If the former position is not available, the employee, upon written request, shall be listed as an eligible applicant for a period of six (6) months. Group Life and Hospitalization Insurance coverage may be continued for a period equal to the authorized leave of absence, provided full premium payments, including the Board's payment, are kept current by the employee. SECTION 2. Return from Leave Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal.[3] This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent.4 Section 2 of Article 35 of NCF&O Contract protects employees from "[h]arassment." It provides as follows: No employee shall be subjected to or be part of: Unwelcome sexual advances, requests for sexual favors, offensive, lewd or suggestive comments. Also includes the creation of a hostile, intimidating, or offensive work environment. Verbal or physical abuse is submitted to by an employee. An adverse decision is made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. Verbal or physical abuse. An adverse decision shall not be made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. There came a time when Respondent claimed, in a Level One grievance filed under the NCF&O Contract, that he was a victim, at the hands of Ms. Boone, of the "[h]arassment" proscribed by Section 2 of Article 35 of the contract. The grievance was filed (with the support of NCF&O) on or about April 8, 2004, several weeks following an incident in which Ms. Boone "yell[ed]" at Respondent for returning "a little bit late[]" from a delivery run. It contained the following "[g]rievance [s]tatement" and description of the "[r]elief [s]ought": Grievance Statement: (Include Date of Occurrence) Mr. Ellis fe[e]ls that he is working in a hostile work environment. He had meeting with the Dept. Head to express his feelings. On March 31, the employee was issued a written reprimand when there has never been any discipline for the employee. Relief Sought: The reprimand is withdrawn from all personnel files. All intimidation of the employee to cease immediately. Ms. Boone, on behalf of the School District, responded to the grievance by providing Respondent with the following written "disposition": After careful consideration of all available information, it has been determined that there has not been a violation, misapplication, or misinterpretation of the collective bargaining procedures. The grievance was not pursued beyond Level One. Since March 16, 2004, Respondent had not been reporting to work, notwithstanding that he had not received authorization to be absent. On or about April 5, 2004, Respondent submitted a request for leave of absence without pay for the period from April 5, 2004, to July 5, 2004. The type of leave without pay he requested was personal leave. By letter dated April 8, 2004, Mr. Baron advised Respondent that Respondent's request was being denied. In his letter, Mr. Baron wrote: You were absent without approved leave on April 5, 2004, April 6, 2004, and April 8, 2004. On Monday, April 5, 2004, you reported your intended absences and requested personal leave of absence starting April 5, 2004 through July 5, 2004. Pursuant to Article 25, Section 1, of the Agreement between The School District of Palm Beach County and National Conference of Firem[e]n & Oilers, "Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent." Your request for personal unpaid leave is denied. You are directed to return to work on Monday, April 12, 2004. Continued unapproved absences will result in further disciplinary action up to and including termination. Respondent did not return to work on April 12, 2004, as directed. The matter of Respondent's unauthorized absences was then "turn[ed] . . . over to [the School District's] personnel [office]" to "deal with." The personnel office decided to ask the School Board to terminate Respondent's employment for his having been absent without authorization. Before the School Board took any action, Respondent submitted another request for leave of absence without pay. The type of leave without pay he requested this time was sick leave. On the request form, Respondent indicated that he wanted the leave period to begin on April 16, 2004, "but there was no end date" written in anywhere on the form. Without an "end date," the form could not be processed. Sherry Kleinman, a School District analyst assigned to the personnel office (whose job duties include processing "all the leaves of absence for School [District] employees"), telephoned Respondent and "asked him what end date he wanted" her to place on the form for him. During their telephone conversation, Ms. Kleinman and Respondent "agreed upon" a May 17, 2004, "end date." Ms. Kleinman inserted this "end date" in the appropriate space on the form and then completed processing Respondent's leave request. Respondent was granted leave without pay for the period starting April 16, 2004, and ending May 17, 2004. Moreover, the personnel office "pulled" its recommendation that the School Board terminate Respondent for his having been absent without authorization. Respondent did not report to work at any time following the expiration of his authorized leave on May 17, 2004, nor did he seek an extension of this leave. There has been no showing made that there were extenuating circumstances present preventing Respondent's timely return to work; nor has it been shown that the issue of whether such extenuating circumstances existed has ever been presented to the Superintendent for determination. Personnel office staff attempted to reach Respondent by telephone to encourage him to seek an extension of the authorized leave that had expired. These efforts were unsuccessful. Upon being advised of the situation by Ms. Kleinman, NCF&O business agent Carolyn Killings, who had helped Respondent in filing his "[h]arassment" grievance, offered to try to contact Respondent, but she too was unable to "reach him." By letter dated June 14, 2004, Ernie Camerino, the assistant director of the personnel office, advised Respondent of the following: You were recently notified by your supervisor of your failure to return to work. As a result of such action, Personnel is currently processing your involuntary resignation from employment with the School District. Please be advised that I will recommend at the July 21, 2004 meeting of the School Board of Palm Beach County, Florida, your involuntary resignation. Subsequent to the July 21, 2004 Board meeting you will have fifteen (15) days to file an appeal under Section 120.[6]8, Florida Statutes. Unless a timely request for an administrative hearing (DOAH) is made within fifteen (15) days stated herein pursuant to Section 120.569 and 120.57, Florida Statutes the District will consider this matter closed. This action is taken in accordance with Section 1001.42 and 1001.51, Florida Statutes. Failure to timely request an administrative hearing shall waive all rights to request a DOAH hearing on such matters and shall be subject only to appeal rights under Section 120.[6]8, Florida Statutes. You have a choice of filing a grievance or requesting a hearing before the Division of Administrative Hearings (DOAH). Questions regarding the appeals process should be referred to the District's Legal Department. If you find this letter inconsistent with the action taken above, you may contact Mr. Camerino immediately at . . . to resolve this matter prior to School Board Action. By letter dated July 8, 2004, Respondent informed the School District's legal department that he was "requesting an appeal" of Mr. Camerino's "involuntary resignation" recommendation. On August 23, 2004, the same day the Superintendent filed his Petition for Involuntary Resignation recommending that the School Board terminate Respondent's employment, the School District referred Respondent's appeal to DOAH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order terminating Respondent's employment based on his failure to return to work following the expiration of his leave without pay on May 17, 2004. DONE AND ENTERED this 14th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of February, 2005.
