The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact The Petitioner, Alfred Greenberg, has held the position of a veterinary aide since approximately November, 1967. During October 1974, he was converted from OPS status to a regular career service employee subject to the normal six month probationary period. By letter dated June 24, 1976, from J. Patrick McCann, Division Director, Petitioner was advised that based on "action by the 1976 legislature, we most regretfully inform you that it will be necessary to abolish your position effective the close of business, June 30, 1976. In lieu of two weeks notice, you will receive two weeks termination pay." (See Respondent's Composite Exhibit Number 1). Within a few days, the Petitioner was converted back to an OPS position receiving the same hourly pay and was advised that he would be offered any vacancy which occurred within the department to which he qualified within the following 12 month period. Petitioner, through his attorney, timely appealed the Respondent's actions essentially contesting his conversion from the career service status to the OPS status and thereby losing social security benefits, retirement benefits and the accrual of vacation and sick leave. He further complained about the manner in which he was served his layoff notice. Specifically, he complained that his letter was hand delivered whereas personnel rules and regulations require that layoff notices etc. be sent by certified mail. In this regard, evidence reveals that by letter dated August 3, 1976, by certified mail, return receipt requested, Petitioner was advised that he was then being provided notice in accordance with the requirement in the department's personnel rules and regulations. Pursuant to emergency rules governing the layoff of career service employees, 22AER76-1, the Petitioner was advised that his position was abolished pursuant to action taken by the 1976 legislature. Evidence adduced during the course of the hearing reveals that the Petitioner's layoff was effected via the procedures as outlined in the above referred emergency rule and he was immediately converted to an OPS position, a position he now holds, at the same rate of pay. Evidence clearly reveals that Petitioner's layoff was effected pursuant to and authorized by the foregoing emergency rule. In view thereof, and in the absence of any evidence which would provide basis for a contrary finding, the action of the Department in effecting the Petitioner's layoff was proper and I shall accordingly recommend that such action be sustained. It is therefore recommended that the action of the Division of Pari-Mutuel Wagering, in effecting the layoff of the Petitioner, Alfred Greenberg, pursuant to emergency rule 22AER76-1, as published in the Florida Administrative Weekly on June 11, 1976, and adopted by the Administration Commission that same date, be sustained. RECOMMENDED this 28th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 James W. Pritchard, Esquire 1038 Alfred I. DuPont Building 169 East Flagler Street Miami, Florida 33131 Mrs. Dorothy B. Roberts Room 443, Carlton Building Tallahassee, Florida 32304
Findings Of Fact At all times relevant, Petitioner was employed as a Clerk Typist with Respondent. Petitioner did not report to work on February 3, 4 and 5, 1988. Respondent's leave policy is that leave should be requested in advance; if an employee gets sick, he or she needs to call in. Petitioner had not requested leave prior to February 3, 1988. On February 3, 1988, Ms. Lester, a co-worker of Petitioner's received a telephone call from a Ms. Williams who stated that Petitioner was in the hospital. Ms. Baker, Petitioner's supervisor, called three hospitals in the area and none had a Ms. Stanyard listed as a patient. Also, she contacted Ms. Stanyard's brother and another person, neither of whom had any knowledge of Petitioner's whereabouts. Finally, Ms. Baker went to Ms. Stanyard's home, but could not find Ms. Stanyard. As of the end of the day on February 5, 1988, Petitioner had not contacted her supervisor or her office.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Administration issue a final order ruling that Petitioner abandoned her position and resigned from the career service. DONE and ORDERED this 29th day of September, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 29th day of September, 1988. COPIES FURNISHED: Ms. Ethelda Stanyard 7855 Wilson Boulevard Apartment 17 Jacksonville, Florida 32210 Scott D. Leemis Assistant District Legal Counsel Post Office Box 2417 Jacksonville, Florida 32231-0083 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
Findings Of Fact The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.) Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal." The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because: A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees; The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months. Petitioner was removed from probationary status as a result of the transfer. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16, 1982, approximately six weeks after it was created, allegedly due to financial streamlining. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons: The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.
The Issue The issue in this case is whether Respondent properly reclassified Petitioner's employment position from Career Service status to Selected Exempt Service status.
Findings Of Fact In 2001, the Florida Legislature enacted a substantial revision to Florida's civil service system commonly referred to as the "Service First" initiative. See Ch. 2001-43, Laws of Fla. Among the significant changes, the revision redefined the parameters of the Selected Exempt Service classification for public employees. In essence, the Selected Exempt Service classification was expanded to include most of the supervisory level employee classifications which had previously been identified as part of the Career Service classification. The statutory changes brought about by the Service First initiative became effective on May 14, 2001. Id. at 15. Petitioner was employed under the Career Service classification by the Department of Children and Family Services since 1990, and served as a Public Assistance Specialist Supervisor, position number 64817, in the Suncoast Region. In light of Section 110.25(2)(x), Florida Statutes (2003), Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2003. Petitioner's Career Service position description remained unchanged when it was reclassified to Select Exempt Service status. The position description specifically identifies supervisory responsibilities and states: Duties and Responsibilities: This is a professional position primarily responsible for the supervision of a public assistance unit for determining the initial and ongoing eligibility of applicants for programs such as Food Stamps, Medicaid, ICP, OSS, Waiver, etc. More specifically, pursuant to the written position description, the Public Assistance Specialist Supervisor is required to "supervise the appointment and case management system" to ensure that subordinates are correctly processing applications. The position is responsible for evaluating all scheduled work and appropriately reassigning work. In addition, pursuant to the position description, the supervisor shall analyze work reports provided by subordinate employees, educate staff, schedule case reviews with supervised employees, and conduct monthly conferences with each employee. The supervisor is obligated to review their performance, identify their strengths and weaknesses, and provide supervisory assistance in achieving acceptable standards. The supervisor is required to prepare written evaluations, conduct staff meetings, and develop in-service training for under achieving employees. Petitioner's actual duties and work-load were consistent with the written position description. Petitioner interviewed applicants and recommended candidates for job vacancies in his area. He supervised subordinates, recommended and levied appropriate corrective action, and organized and distributed work. Petitioner set organizational goals, motivated employees, trained and developed their technical skills, resolved employee problems, and implemented performance and quality control standards. Petitioner was responsible for ensuring that the staff assigned to him maintained at least a 90 percent accuracy rate on case reviews processed and a 96 percent processing rate on unit assigned client applications. Petitioner admits that his supervisory duties consumed most of his time. He acknowledges that client interviews were not part of his normal duties and concedes that he regularly supervised employees, provided feedback to employees, and performed evaluations. In addition, he agrees that his recommendations regarding discipline were usually followed. Petitioner routinely led staff meetings with his subordinates and frequently met with them individually. He controlled work-flow and made changes as he deemed appropriate within his department. Petitioner admits that he functioned as the supervisor in an area that was distinct and separate from the other units. The evidence presented at hearing establishes that Petitioner's written and actual duties were supervisory in nature, and he spent the majority of his time performing those duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order approving Petitioner's reclassification. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2004. COPIES FURNISHED: Joseph A. Conley, Jr. 8511 Sunflower Lane Bayonet Point, Florida 34667 Jennifer Lima-Smith, Esquire Department of Children and Family Services 9393 Florida Avenue, Room 902 Tampa, Florida 33612-7236 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Petitioner was employed by HRS at the Broward County Public Health Unit ("BCPHU") as a Fiscal Assistant II, a career service position. Petitioner began working for HRS in approximately August, 1973. From approximately July of 1986 through July of 1991, Petitioner's supervisor at BCPHU was Sylvia Villafana. During this time period, Ms. Villafana frequently counseled Petitioner regarding excessive absenteeism and tardiness which interfered with Petitioner's ability to meet necessary deadlines at work. Even before 1986, Petitioner's personnel record reflects excessive use of sick leave and problems with prompt and consistent attendance at work. These issues were discussed with Petitioner on several occasions. In March of 1991, Ms. Villafana scheduled a meeting for March 21, 1991, with Petitioner and Jeff Keiser, the personnel manager for BCPHU. At that meeting, Ms. Villafana intended to issue a written reprimand to Petitioner regarding excessive absenteeism. The March 21, 1991, meeting was scheduled to begin at 2:00. Petitioner left the BCPHU building at approximately 1:00 p.m. that day and did not attend the meeting. Petitioner contends that she was having chest pains and went to the hospital that afternoon. Petitioner did not advise her supervisor that she was leaving the premises. Petitioner did advise at least one co-worker at BCPHU that she was leaving. The next day, Petitioner's daughter called Ms. Villafana and told her that Petitioner was in the hospital. Ms. Villafana told Petitioner's daughter that documentation would be needed of Petitioner's medical problems. No records of Petitioner's hospitalization were ever presented to Ms. Villafana or any other HRS supervisor. Petitioner was apparently discharged from the hospital on the evening of March 22, 1991. Petitioner contends that she called Ms. Villafana on Monday, March 25, and told her that she was still under a doctor's care and that she would return to work as soon as he released her. Ms. Villafana contends that the telephone conversation did not occur until March 29, 1991. In any event, Petitioner did not ask for authorized leave. During the telephone conversation, Petitioner indicated that she had a doctor's appointment on April 2. Ms. Villafana told Petitioner that medical documentation of her problem would be necessary. On April 3, 1991, Petitioner did not return to work. At this point, Ms. Villafana had virtually no information regarding Petitioner's alleged illness and/or condition. Ms. Villafana inquired of other employees regarding Petitioner's condition, but was unable to learn anything more. On the afternoon of April 3, 1991, Petitioner contacted Ms. Villafana and indicated that she would be back to work on April 9, 1991. The April 3 conversation was acrimonious. Because there were several large project deadlines coming due, Ms. Villafana emphasized that medical documentation was needed to support Petitioner's claim of illness. Petitioner did not show up for work on April 9, 1991. On April 10, 1991, Petitioner called and told Ms. Villafana that she was mailing in notes from her doctors and then hung up. On April 11, 1991, Ms. Villafana found notes from two doctors on her desk. The notes were submitted into evidence at the hearing, but were not authenticated by the physicians who purportedly authored them. One of the notes was allegedly from Dr. Murillo, a cardiologist. This note indicated that Petitioner would be able to return to work on April 15, 1991. The second note was from Dr. Love, an orthopedic surgeon, who indicated that he was scheduled to see Petitioner again on April 24, 1991, and that Petitioner was "unable to return to work" until then. No explanation was given as to the nature of Petitioner's injuries. At the hearing in this case, Petitioner contended that she was seeing Dr. Love in connection with injuries supposedly received during an automobile accident on February 20, 1991. No persuasive evidence was presented as to the nature and extent of those injuries. The car accident occurred on the evening of February 20 and Petitioner reported to work the next day. No evidence was presented to establish that Petitioner missed any work as a result of the car accident prior to the time she left work on March 20, 1991, complaining of chest pains. Ms. Villafana advised Petitioner that the doctor's notes submitted on April 11 did not provide adequate documentation of her medical condition and/or inability to work. Petitioner did not report to work on April 25, 1991, and did not contact her supervisor. Neither Ms. Villafana nor the personnel office had a home phone number or current residence address for Petitioner. One of Petitioner's friends gave Ms. Villafana a P.O. Box number which Petitioner was using as a mailing address. On April 30, 1991, Ms. Villafana prepared a letter which was sent to Petitioner at her last known address and by certified mail to the post office box. That letter advised Petitioner that as of the close of business on Monday, April 29, 1991, she was absent without authorized leave and was in jeopardy of being deemed to have abandoned her position. The letter noted that the last medical excuse from Dr. Love expired as of the end of the normal work day on April 24, 1991. The certified letter was not claimed. On April 30, 1991, Petitioner spoke with Jeff Keiser who advised her that she would be receiving a letter regarding the possible abandonment of her position. Petitioner did not request and was not given authorized leave. During one of their conversations over this period of time, Ms. Villafana advised Petitioner that she should document in writing a request for leave. No such written request was ever received. Also during one of these conversations, Petitioner acknowledged that she had received the April 30, 1991 letter. On May 2, 1991, Ms. Villafana received two additional notes on Dr. Love's letterhead. One of the notes was dated April 24, 1991, and indicated that Petitioner was scheduled for a follow up visit on May 8, 1991. The second note was dated May 1, 1991, and indicated that Petitioner was unable to return to work for two weeks. The note on Dr. Love's letterhead dated May 1, 1991, included some information regarding Petitioner's alleged medical problems. However, Ms. Villafana advised Petitioner that she needed additional information regarding her condition. On May 13, 1991, Petitioner provided Ms. Villafana with a note on Dr. Love's stationery dated May 8, 1991. This note indicated that Petitioner was unable to work for two more weeks and was scheduled for a follow up visit on May 22, 1991. Ms. Villafana spoke with Petitioner on May 23, 1991. During that conversation, Petitioner indicated that she was returning to the doctor on May 30 and hoped to be in the office on May 31. Petitioner did not show up for work on May 31, 1991. On June 3, 1991, Petitioner called Ms. Villafana and advised her that she was going to see the doctor and, if he released her, she would be back at work on Wednesday, June 5. Petitioner did not show up for work on June 5, 1991. On June 20, 1991, Ms. Villafana received a note on Dr. Love's office letterhead indicating that Petitioner visited his office on June 14, 1991, and was unable to return to work for one week. Around this time, another note was received which indicated that Petitioner had an office visit on June 7, 1991, and was unable to return to work for one week. In a letter dated June 21, 1991, Ms. Villafana advised Petitioner that her [C]ontinued actions have placed [her] employment with the HRS BCPHU in serious jeopardy. Leave of absence (sick leave and/or leave without pay) was never formally requested by you since your midday departure on 3/20/91 and was, therefore, not approved. Chapter 22A-8.002 of the State of Florida Career Service Personnel Rules and Regulations states that 'the granting of any leave of absence with our without pay shall be in writing and shall be approved by the proper authority within the agency.' This was not done. On various occasions, I requested that you inform me of your intentions in reference to your leave, which you did not communicate to me, your supervisor, of your plans. As of this date, you have been on unauthorized leave for three months... All avenues of communication to you have been exhausted; I am unable to call you because you state that you have no telephone; certified mailings to your P.O. Box and various addresses have been returned unclaimed; etc. On the few and far between telephone calls from you, I received the run around stating that medical notes are forthcoming in the mail. This practice will no longer take effect. You are therefore, Ms. Gray, to return to work on 8:00 a.m. on Monday, July 1, 1991... The June 21, 1991 letter was sent to Petitioner by certified mail. Copies were also sent to Petitioner's P.O. Box and last known address in unmarked envelopes. Petitioner did not show up for work on July 1, 1991. During the hearing, Petitioner contended that she did not receive the June 21 letter until July 3, 1991. Petitioner contends that Dr. Love did not release her to return to work until July 10, 1991. Petitioner admitted during the hearing that she spoke to Ms. Villafana and Mr. Keiser on July 3, 1991. Neither of these supervisors gave her authorization for any additional leave. Petitioner contends that she told them that she would not return to work until released by her physician. There is no evidence that either Ms. Villafana or Mr. Keiser granted her leave to remain absent for any additional time. On July 10, 1991, Petitioner contacted her supervisor about returning to work, but was told that she was deemed to have abandoned her position. At the hearing Petitioner produced two typewritten notes on the stationary of Dr. Love dated June 21, 1991, and July 10, 1991 (Petitioner's Exhibits 4 and 2). Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. As noted above, Dr. Love did not testify at the hearing. These alleged records of Dr. Love's treatment of Petitioner were not provided to Ms. Villafana or the BCPHU Personnel Office until after Petitioner as deemed to have abandoned her position. Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Love's reports prior to receiving the June 21, 1991 certified letter. However, the more credible evidence established that from June 20 through at least July 10, neither Ms. Villafana nor the Personnel Office was provided with any documentation from any physician that Petitioner was unable to work. The evidence established that from June 21, 1991, until July 10, 1991, Petitioner did not show up for work, did not provide any additional documentation regarding her absences and was not granted authorized leave. During the time she was employed at BCPHU, Petitioner was presented with a copy of the HRS Employee Handbook. That Handbook advised employees that they could be deemed to have abandoned their position if they were absent for three consecutive work days without authorization. Ms. Gray should have been aware of the requirements regarding sick leave and leaves of absence and her need to provide documentation regarding her course of treatment to the BCPHU Personnel Office. By certified letter dated July 25, 1991, Respondent advised Petitioner that she was deemed to have abandoned her career service position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order finding that Inez Gray abandoned her career service position with HRS and is not eligible to be reinstated or to receive any back pay. DONE and ENTERED this 7 day of August 1992, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7 day of August 1992. APPENDIX Only Petitioner submitted a proposed findings of fact. The following constitutes my rulings on those proposals. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4. Subordinate to Findings of Fact 7 and 24. Rejected as not supported by the weight of the evidence. This subject matter is addressed in Findings of Fact 24. The last note submitted was dated June 14, 1991 and indicated that Petitioner was unable to return to work for one week. This last note was received by Petitioner's supervisors on June 20, 1991. Adopted in pertinent part in Findings of Fact 19-22. Subordinate to Findings of Fact 22. Adopted in substance in Findings of Fact 33. The first sentence is subordinate to Findings of Fact 25 and 27. The second sentence is subordinate to Findings of Fact 26. Rejected as vague and unnecessary. Rejected as unnecessary and irrelevant. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry Strong, Acting Secretary Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center Tallahassee, Florida 32399-0950 Augustus D. Aikens, Jr., Esquire Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center Tallahassee, Florida 32399-0950 Ben Patterson, Esquire Patterson & Traynham 1215 Thomasville Road P.O. Box 4289 Tallahassee, Florida 32315 Judith C. Engelberg Acting District Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard, Suite 513 Fort Lauderdale, Florida 33301-1885
