The Issue The issues in this matter are whether Petitioner was a supervisory employee as defined by Subsection 110.205(2)(x), Florida Statutes (2001), and was, therefore, properly reclassified from Career Service to Selected Exempt Service effective July 1, 2001.
Findings Of Fact The 2001 Florida Legislature enacted a substantial revision of the Florida Civil Service system referred to as the "Service First" initiative. (See Chapter 2001-43, Laws of Florida). This revision, which became effective on July 1, 2001, substantially expanded the parameters of the Selected Exempt Service classification to include many positions which had previously been identified as Career Service positions. Generally, Selected Exempt Service employees serve at the pleasure of the agency head and are considered at-will employees; whereas, Career Service employees have greater employment rights and job security. Petitioner was employed by Respondent at the Pinellas Maintenance Yard from December 15, 1997, to September 19, 2002. Initially, Petitioner held the position of Office Support III, but was eventually promoted to Office Support V in June 2001, both Career Service classifications. Following the enactment of the Service First initiative, Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2001. On September 19, 2002, Petitioner was terminated from employment without explanation. His annual salary was $32,500. Following the decision in Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), Respondent notified Petitioner of his rights to seek an administrative hearing and challenge the reclassification. Petitioner timely challenged Respondent's action. During his tenure working for Respondent, Petitioner, pursuant to his written position description, was responsible for various administrative functions, including personnel, records, and fiscal matters, as well as supervisory responsibilities, including the supervision of a few administrative staff. Specifically, his position description provides in part: 20% of time: Supervises and/or participates in the daily administrative activities . . . . Ensuring the reception telephone and radio are fully staffed at all times. . . 15% of time: Supervises and/or participates in the personnel activities for Pinellas Maintenance Office. Counsels employees in matters of retirements, benefits, grievances, discipline and other personnel and work related problems. . . 15% of time: Supervises and/or participates in the fiscal activities for the Pinellas Maintenance Office. Supervises the maintenance of ledgers and Journals associated with local Purchase Orders, local Charge Accounts and Purchase Requisitions, Utility Invoice Transmittals, Contract Invoice transmittals, Partial Payments, etc. . . 10% of time: Directs purchasing for the Pinellas Maintenance Office. . . 10% of time: Serves as representative of the Pinellas Maintenance Engineer at meetings. . . 10% of time: Receives incoming mail, reviews and distributes to appropriate personnel. . . 5% of time: Participates in the selection process for entry level Field Operations Unit positions. . . 5% of time: Directs and coordinates the maintenance and use of records storage. . . 5% of time: Trains employees in methods for performing an efficient and effective job. 5% of time: Performs other related duties as required. Petitioner admits that he was responsible for and routinely engaged in many activities that were supervisory in nature. The evidence supports the fact that Petitioner performed these duties, and his performance evaluations reflect his activity. Petitioner's position description allocated specific time frames to the written duties and responsibilities. Upon careful review, the position description provides that the Office Support, Level V position employee shall "supervise and/or participate" in administrative, personnel, and fiscal matters 50 percent of the work-time. The remaining 50 percent of work-time is allocated to other duties, including purchasing, attending meetings, mail distribution and inquiries, assisting with the selection process of certain entry level positions, coordinating records storage, training certain employees, and performing other "related duties as required." While Petitioner admits that he performed supervisory activity, he contends that it consumed a small percentage of his work-time. He further argues that he was authorized and required to spend 50 percent of his time "supervising and/or participating in" certain activities. Petitioner alleges that he spent little time "supervising" and most of his time "participating" and actually performing the activities. The evidence demonstrates that among the 80 to 100 people employed at the yard, Petitioner supervised a personnel technician, a financial clerk, a clerical employee, and a receptionist, all of whom required limited supervision. Petitioner primarily served as the personnel liaison for all of the employees, maintained their files, researched personnel matters, and responded to inquiries. He handled the personnel paperwork related to hiring and firing, leave, pay adjustments, travel reimbursements, and employee benefits. In addition, Petitioner investigated and processed workers' compensation claims and handled the yard's safety and training records. He worked on special projects including ferreting out overtime abuse, installing a security system, and handling certain maintenance issues. In addition to his administrative personnel responsibilities, Petitioner admittedly supervised, trained, directed, and evaluated four subordinates and was responsible for improving their performance via counseling and corrective action. He initiated disciplinary action and issued a written reprimand to one employee with poor attendance. On occasion, Petitioner conducted staff meetings with his subordinates and also met with them individually. He managed attendance and approved leave for his staff of four. He participated in interviewing and selecting candidates for open positions under his supervision and determined the appropriate criteria, created the interview questions, and was a member of the interview panel. Petitioner was evaluated, in part, upon his supervision of subordinates. One evaluation noted that he needed to improve follow-up with assignments made to others and another indicated that he capably initiated change, but occasionally required assistance to effectuate it. Petitioner's evaluations also assessed his leadership and delegation skills, and one noted that he delegated well, but needed to work to regain better control of his areas. Although some of Petitioner's time was spent supervising, the evidence demonstrates that the vast majority of his work-time was spent performing non-supervisory activities. The facts show that Petitioner actually performed the noted activities the majority of the time and supervised those activities on occasion. Furthermore, Mr. Nawab, who periodically served as Petitioner's supervisor, provided credible evidence that Petitioner's primary responsibilities and the majority of his work-time involved non-supervisory activities. While Petitioner, during his testimony, diminished the time he spent engaged in supervisory work, the credible evidence demonstrates that he spent the minority of his work-time communicating with, motivating, training, and evaluating employees and planning and directing employees' work. Although Petitioner may have demonstrated mediocre supervisory skills, which does not make the position any less supervisory, neither Petitioner's supervisor nor his position description required him to spend the majority of his work time engaged in those supervisory activities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The position of Office Support V for the Pinellas Maintenance Yard for the State of Florida Department of Transportation was not exempt from Career Service classification as defined in Subsection 110.205(2)(x), Florida Statutes (2001); Respondent improperly reclassified the position as Selected Exempt Service; and Petitioner should be reinstated with the full benefits accrued since his termination on September 19, 2002. DONE AND ENTERED this 25th day of May, 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 25th day of May, 2004. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350 324 South Hyde Park Boulevard Tampa, Florida 33606 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has suffered an injury protected by the provisions of Chapter 120, Florida Statutes, when the Respondent, the superintendent of education of Escambia County, acting pursuant to his statutory authority, Section 1012.22(1)(a)(3), Florida Statutes, refused to re-nominate the Petitioner for employment.1/
Findings Of Fact At all times material hereto, Jim Paul served as the superintendent of Schools for Escambia County. Joe Bernard was the director of risk management for Escambia County Schools, supervised by Superintendent Paul. Mr. Bernard began working for the school district in 1986. In January 2000, he began serving as the risk manager. AON Consulting is a firm involved in arranging for and inaugurating employee benefit plans, such as medical and dental benefits. It consulted in such an effort for the School Board and had a contract with the Escambia County School District designed to help the district contract with various health care insurers concerning medical and dental benefits for district employees. Under its arrangement with the Escambia County School District, AON Consulting (AON) would bill the school district by the hour for its consulting services and additionally would charge for costs involved for travel, food, and lodging. The bills were submitted in total amounts without being itemized. When Mr. Bernard became the risk manager for the School Board and the superintendent, the AON contract was under his budgetary supervision. He was the administrator of that contract and was charged with ensuring that bills were authorized when submitted by AON and that services performed by AON and paid for by the school district were within budgetary requirements and guidelines. Mr. Bernard did not request or require that AON bills be itemized. When Mr. Bernard became the director of risk management, AON already had the consulting contract with the school district. For the fiscal year 2002-2003, the contract was awarded through a bidding process. Several vendors bid on securing the contract. Mr. Bernard served on the evaluation committee that reviewed all bids. Other members of the committee were Dr. Garber, Barbara Luker, and Gary Moyer. The evaluation committee interviewed the final two vendors/bidders and then recommended that the superintendent award the contract to AON. Mr. Bernard was the superintendent's expert with regard to insurance matters and the superintendent relied on him a great deal in determining who would be awarded the contract. Mr. Bernard recommended AON and the contract was awarded to AON. Thereafter, in February 2003, at a School Board meeting, Mr. Bernard arranged for an agenda item for the Board to consider regarding an increase he proposed to AON's "purchase order" so as to provide AON an additional $25,000. Ms. Stidham, an Escambia County School Board member had questions and concerns about the non-itemized billing received from AON. She wanted a detailed itemization on all AON invoices. Because of her concern, the issue she raised was referred to Sam Scallan, the Board's Director of Internal Auditing. Mr. Scallan conducted an analysis of invoices for AON Consulting and sent his findings to Superintendent Paul. The Scallan analysis indicated that AON was not billing for reimbursements in accordance with Florida Statutes. It indicated that expenses reimbursed by the district included some exorbitant meal expenses for district employees and their guests. It also indicated that the director of risk management (Mr. Bernard) and his guest, had been furnished with substantial meals on three different occasions and that other expenses reimbursed by the district to AON, included business dinners, a retirement gift, and cigars. Superintendent Paul ordered an investigation of the matter because of Mr. Scallan's analysis. Dr. Doug Garber, the assistant superintendent of Human Resources was appointed to conduct the investigation. Dr. Garber interviewed Mr. Bernard and took a recorded statement from him during his investigation. Mr. Bernard stated that he was familiar with the Florida Statute regarding gifts and gratuities, as well as the School Board policy and knew that "[Y]ou're not supposed to [accept gifts]." Mr. Bernard had developed a business and personal relationship with Chris Clark, the AON consultant, whereby each would purportedly take turns paying for each other's meals. When Mr. Clark was in town, he and Mr. Bernard would sometimes have breakfast, lunch or dinner together. They would take turns buying meals at McGuire's Restaurant and the Pensacola Yacht Club. They had a $400.00 meal expense at Sandor's Restaurant in South Walton County (for four people). Mr. Bernard maintains that he paid his share of that bill by giving Mr. Clark $200.00 in cash on that occasion. They also attended Atlanta Braves baseball games in Atlanta and three NASCAR races. Mr. Bernard maintains he paid Mr. Clark for the NASCAR racing tickets in cash. When on the Atlanta trips, they would have dinner at Bones Steakhouse in Atlanta. Mr. Clark would typically pick up the tab for the meal and Mr. Bernard and his guest would pay the tab for the remainder of the weekend (lodging, cab fare, drinks, etc.). Mr. Bernard stated that he did not know that Mr. Clark was billing improperly because the bills were never itemized. Mr. Bernard contends that Mr. Clark charged the school district for bills that Mr. Bernard had already paid for himself. Mr. Bernard testified that he always reciprocated when dealing with vendors. The reason he states he reciprocated or took turns in paying the restaurant and other bills is that he did not want to create the appearance of an impropriety. Cynthia Craig is an Escambia County school district vendor. She testified that she and Mr. Bernard would take turns buying lunches for each other but they would occasionally lose track of who's turn it was to pay. She also stated that she and Mr. Bernard would sometimes consume alcohol during business lunches. Dr. Garber provided Mr. Bernard with a number of opportunities to clear the matter up concerning the allegations. Mr. Bernard provided Dr. Garber with the names of two witnesses that he wanted to be contacted and interviewed who he felt had information favorable to him. Dr. Garber attempted multiple times to contact those witnesses but was unable to reach them. Dr. Garber told Mr. Bernard on two or three occasions that he had not been able to reach the witnesses and requested that Mr. Bernard get verification from his witnesses so their information could be included in Dr. Garber's report. Dr. Garber was prepared to give credence to the witnesses identified by Mr. Bernard and attempted to contact them, but was unable to subpoena them or otherwise force them to testify. Dr. Garber completed his investigation and issued a report on April 30, 2003. The report to the superintendent concluded that Mr. Bernard had not violated the Code of Ethics provided in Section 112.314(h), Florida Statutes, but that he did violate School Board Rule 3.08, which essentially prohibits employees from taking anything of value from vendors of the school district. As a result of the investigation AON reimbursed the school district $5,700.00, for expenses improperly billed by Mr. Clark. Mr. Bernard only provided receipts for $900.00 of such expenses. Mr. Bernard had not provided any additional receipts as of the time of the hearing, although he possibly could have obtained receipts from his credit card company or through cancelled checks obtained from his bank. Dr. Garber stated that he was prepared to consider any additional information shedding light on the subject matter of the investigation that Mr. Bernard could have provided, and gave him an opportunity to do so. Before taking any action regarding Mr. Bernard's future with the School Board and the superintendent's office, Superintendent Paul waited for the investigation to be completed. After the investigation was completed the superintendent decided not to re-new Mr. Bernard's contract. Superintendent Paul decided not to renew the contract because he believed that Mr. Bernard's effectiveness in negotiating future health insurance rates and plans for 10,000 employees, dependents, and retirees had been damaged. The superintendent had lost confidence in Mr. Bernard's judgment. On May 9, 2003, the superintendent sent Mr. Bernard a letter advising him that his employment contract would not be re-newed. He was allowed to serve-out the end of his existing contract, however, and then left the school district in May 2003 on administrative leave. His contract actually expired June 30, 2003. It was an annual employment contract. He had received all the pay he was entitled to under the contract and according to the terms of the contract, Mr. Bernard did not possess any expectancy of continued employment beyond the end of the 12- month term of the contract. Paragraph 9 of Mr. Bernard's contract of employment provided as follows: "It is expressly understood and agreed by and between the parties hereto that neither the Employee nor the School Board owes any further contractual obligation to the other after June 30, 2003, and that no expectancy of re-employment may be derived from the execution or performance of this agreement."
Recommendation Having consideration the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the petition of Joseph Bernard be denied. DONE AND ENTERED this 9th day of June, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2004.
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 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 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
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 Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on June 17, 1998.
Findings Of Fact Petitioner was employed as a freezer-puller, by Respondent, a wholesaler of natural and specialty food products. The quality of Petitioner's work for Respondent is not at issue as Respondent acknowledged that Petitioner was a good worker and always got good evaluations. Around January 8, 1997, Petitioner requested and was granted leave under the Family Medical Leave Act. The request stemmed from his wife's terminal illness and his need to take care of her. Mrs. Gilliam passed away on February 15, 1997. On February 28, 1997, Petitioner's primary doctor wrote a note to Respondent that Petitioner "is excused from work this week and the next two weeks for medical reasons." On March 14, 1997, Petitioner's doctor wrote a letter to Respondent stating that Petitioner was suffering from complications of grief reaction. The letter recommended that Petitioner be placed on a ground level job for the next six months "until the severe impact of this grief reaction has a chance to lose it's sharpness and severity." It did not say that Petitioner could not return to work. On March 25, 1997, Petitioner's doctor wrote the following note on a paper entitled, "Certificate to Return to School or Work": "Pt. suffering from grief reaction. Therapist to see pt. on 4-3-97. Work status dependent on counseling progress." On the same date, Petitioner's doctor signed an insurance claim form which also stated that Petitioner's work status depends on what the therapist recommends. On April 3, 1997, Petitioner's doctor wrote a note which stated: To Whom it May Concern, Mr. Gilliam is presently in counseling. He has an appt. on April 17th & will have several consecutive visits. He is also attending a support group. Depending on his progress, he may be able to return to work mid-May. Thank you for your kind patience. On April 14, 1997, the insurance company which issued the group disability policy covering Respondent's employees wrote to Petitioner notifying him that benefits beyond April 3, 1997, were denied and giving him a time frame in which he could request a review of the claim denial. The letter stated in pertinent part, "You have been disabled for a grief reaction due to the death of your wife. Although we sympathize with your loss, we now feel that the grief reaction process is no longer a disabling condition." On May 5, 1997, Kim Hamrick, who at the time was Respondent's director of human resources but who no longer works for Respondent, wrote to Petitioner informing him that he had exhausted all twelve weeks of his family medical leave. The letter further stated: Once you exhaust all of your leave and you do not [sic] to return to work the company has a legal right to fill your position as a Puller/Stocker in the Freezer. Once you have been released to return to work we will look at placing you in another position within the organization. If you wish to continue your medical, dental and vision insurance at this time, you will still be required to pay your portion by the tenth of the month or coverage will be cancelled. Please feel free to contact me if you need any assistance. Keep me informed as to your work status. There was an unfortunate lack of communication between the parties after this point. In November or December of 1997, Petitioner called Glynda Copeland who was the employee of Respondent now handling this situation, asking about his insurance enrollment form for 1998. This phone call resulted in a meeting between Petitioner and Ms. Copeland. Petitioner was under the impression that he was still on a leave of absence. Ms. Copeland informed him that he had been terminated. The extent of the lack of communication between the parties was evidenced at hearing when it became clear that had Petitioner informed Respondent that he wanted to work and wanted his job back, Respondent would have allowed him to resume working. However, Petitioner was so devastated that he had been terminated that he did not ask to be able to resume working for Respondent. Petitioner maintains that he submitted all requested medical documentation to Respondent. However, the documents from physicians submitted by Petitioner to Respondent were insufficient to support the proposition that Petitioner was unable to work for medical reasons beyond April of 1997. Specifically, no doctor wrote that he was unable to work for medical reasons after April 1997.1 After learning that he had been terminated from employment with Respondent, Petitioner found other employment.
Recommendation Based upon the 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 Charge of Discrimination. DONE AND ENTERED this 16th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 16th day of April, 2001.
Findings Of Fact Respondent, Theresa L. Beadle, began her employment with petitioner, Department of Health and Rehabilitative Services (HRS), on or about July 1, 1982. She held the position of clerk typist II with an AFDC unit at HRS' Miami district office. Her position was considered a "pivotal" one by HRS personnel because it was Beadle's responsibility to keep and maintain the unit's case records for recipients. Therefore, attendance was an important criterion for her position. Beadle has suffered from coccygodynia (severe pain of the tailbone) and low back pain for at least three years and has been treated for this condition by both a chiropractor and a physician. According to one of her physicians (Dr. Shuflitowski), she should not engage in "heavy lifting (or) long-stretching of the arms." However, Beadle's job duties do not require these activities, and her physician confirmed in a letter to HRS on December 31, 1986 that "there is no justification for her being unable to perform her job as indicated." In addition to her back ailment, Beadle has also suffered from depression principally caused by the recent death of both her mother and her only son in October, 1986 and January, 1987, respectively. She has been treated by a psychiatrist (Dr. Betancourt) for this condition. After a brief absence from work in early October, 1986, caused by her mother's death, Beadle returned to work on or about October 4, 1986. On December 11, 1986 she left work saying her son was seriously ill in Connecticut. She did not formally obtain leave to do so. Around December 29, her daughter visited HRS' office and spoke with the program administrator, James Sanders, and told him that after speaking with her mother by telephone, she did not know when her mother would return to work. On December 30, 1986 Sanders advised Beadle by certified mail that she was "directed to report to (her) official position by 8:30 a.m. on Thursday, January 8, 1987 . . . (or she would be) deemed . . . (to) have abandoned (her) position and to have resigned from the Career Service." On January 4, 1987 Beadle's son passed away, and his funeral was held on January 8. Beadle eventually returned to Miami in mid-January. Although she did not return to work at that time, Beadle telephoned Sanders' supervisor, Barbara Coles, on January 15 and was told by Coles to either contact Sanders or her immediate supervisor, Albert Peart, concerning her situation by January 16. She did not contact either person. On January 20, Beadle's daughter telephoned Sanders to say her mother was unable to come to work. On January 23, Beadle sent Sanders a "disability certificate" from a Dr. Ticktin, a Hialeah orthopedic surgeon, who attested that Beadle had been under his care since January 15 and would be "totally incapacitated" until February 5. However, he also wrote a cover letter stating that Beadle had an appointment on January 15 and could "return to work with no heavy lifting." After receiving the above certificate, Sanders wrote Beadle by certified mail on January 23 advising that she was "directed to report to work immediately and provide an explanation for her absences." Again, Beadle did not directly respond to this letter but had Dr. Betancourt, a Miami Shores psychiatrist, send a letter to HRS on February 5 stating that Beadle was under his professional care and could not return to work until February 20. A disability certificate was later sent by Dr. Betancourt attesting that Beadle was "totally incapacitated from January 15 to February 19" and could not return to work until March 6, 1987. Upon receipt of Dr. Betancourt's correspondence, Sanders sent Dr. Betancourt a letter on February 23 requesting further medical information to verify her medical condition. On February 27, Dr. Betancourt responded and advised that although Beadle was suffering from depression, she could "perform (her) duties without any limitations." He also suggested she be transferred to another position "with fewer environmental stressors." On March 12, Beadle returned to work for a "few days," but left soon afterwards to go to Plant City for an undisclosed purpose. There is no evidence that she requested leave to do so. She never returned to work. On March 30, 1987, Coles contacted Sanders about Beadle's absences, and told him he was in danger of being charged with negligence for not taking any action against Beadle. Up to this time, Sanders had not initiated disciplinary action because, in his words, he wanted to give Beadle a chance to return, was a "softie," and knew that being fired was a "traumatic" experience. However, now fearing for his own situation, Sanders wrote Beadle on April 15 requesting a medical certificate and advising her that unless her supervisor (Peart) received a certificate by April 22, all leave used by Beadle after that date would be "unauthorized." Apparently responding to the above request, Beadle had Dr. Betancourt prepare a certificate stating that Beadle had been under his care from April 2 to April 20, but could return to work on April 20. This certificate was received by HRS on April 17. On April 21, Dr. Betancourt sent Sanders a letter stating that "Beadle would like to request a leave of absence for six months because of her emotional turmoil and recent trauma." During this same period of time, Beadle did not personally contact Peart, Sanders or Coles concerning a leave of absence. Confronted with this maze of disability certificates and conflicting medical advice, HRS decided to have Beadle evaluated by another physician. It accordingly advised her by certified mail dated May 4 that she should contact a Dr. Gilmore and make an appointment for an examination. The letter was not picked up by Beadle and was returned to HRS unclaimed. Two other certified letters sent on May 12 and 14 to Beadle were also unclaimed. Beadle never made an appointment with nor was she examined by Dr. Gilmore. On June 25, Beadle was advised by certified mail that in view of her failure to contact her supervisor since her last day of work on March 31, 1987, or to request leave, she was terminated effective upon receipt of the letter. Beadle received the letter, and thereafter requested a hearing to contest the action. Beadle pointed out that she had experienced a series of problems with her supervisor (Peart) who continually harassed her after her return on October She also stated her job evaluations were always good until she was transferred into Peart's unit, and that in her fragile emotional state caused by her recent tragedies, she could not cope with the job stress generated by Peart's harassment. She also pointed out that a request to Sanders to transfer units was ignored. She conceded that she had signed a statement acknowledging she had read and understood the employee's handbook. This handbook explains the unauthorized absence rule, and the need to obtain authorized leave before being absent from work. She also conceded she had been absent for more than three consecutive workdays since March 31, 1987 without having authorized leave. Beadle wishes to eventually return to work, but not in the same unit, and only after she is psychologically able to cope with job stress.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Theresa L. Beadle abandoned her job with petitioner. DONE AND ORDERED this 9th day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of November, 1987.
The Issue Whether the Respondent discriminated against the Petitioner contrary to statute on the basis of Petitioner's disability.
Findings Of Fact Petitioner was diagnosed with cancer in December of 2002, and was on sick leave off and on from the time of her diagnosis until the first part of 2004. Later, after surgery, the Petitioner was on extended leave while she recovered from surgery and later from chemotherapy. In June of 2003, Petitioner was rapidly approaching the end of her available leave, but, more significantly, the end of the leave required to be granted under the Family Medical Leave Act (FMLA). This situation resulted in correspondence between Petitioner and the Department about extension of her leave and her return to work. On June 17, 2003, Jeff Carr, Human Resources Manager for the Department, sent a letter to Petitioner in connection with her medical leave status. This letter advised Petitioner that an agreed-upon extension of leave would cover Petitioner until July 4, 2003. As the latest physician's statement submitted by Petitioner indicated that Petitioner was unable to perform the essential functions of her job, the letter from Mr. Carr advised Petitioner of options available to her: 1) a return to work on July 5, 2003, if she was released by her physician as able to perform the essential functions of her job; 2) resignation if she was unable to perform the essential functions of her job; 3) regular or disability retirement. If Petitioner did not choose one of the three options, she was advised she would be terminated. On June 23, 2003, Petitioner wrote to Beth Englander, District Administrator, requesting additional leave in accordance with her doctor's latest evaluation. A copy of a note from Petitioner's oncologist was attached which stated that Petitioner would need to be off at least six to eight weeks. In addition, Petitioner noted that following completion of chemotherapy she would need additional surgery and would need to make additional requests for leave. Petitioner e-mailed Ms. Englander on June 24, 2003, and Ms. Englander replied that same day. The reply again advised Petitioner of her three options to avoid termination for inability to perform her job. After having been twice advised of her options, Petitioner wrote Mr. Carr on June 27, 2003, advising that she would not finish her chemotherapy treatment until approximately September 1, 2003. However, no estimate was given for Petitioner's medical release to return to work following the additional surgery Petitioner said she would need in her letter to Ms. Englander of June 23, 2003. In her letter of June 27, 2003, Petitioner requested additional leave as what she claimed to be a reasonable accommodation under the Americans With Disabilities Act (ADA). Petitioner also said she wanted to work at home in lieu of leave. However, Petitioner provided no doctor's statement to contradict the one she submitted saying that she would be unable to work for six to eight weeks. On July 6, 203, Petitioner wrote Mr. Carr that she was accepting the alternative of retirement. In this letter, Petitioner again stated that she was not finished with treatment and would need additional time to complete the treatment. At the hearing, Petitioner admitted that she was unable to inspect daycare facilities to conduct the inspections required as an essential function of her position. In addition to the regular inspections, initial licensing and relicensing inspections, day care licensing counselors also have to make inspection in response to complaints received by the Department. Petitioner said that, as an accommodation, she wanted to be relieved from conducting inspections and be permitted to process the inspection reports prepared by other counselors and other paperwork. Although Petitioner contended at the hearing that she might have been able to work part-time, she admitted that after submitting the statement that she could not return to work for at least six to eight more weeks she had not gone back to her doctor to ask him to clear her for part-time work. Petitioner also speculated that she could have performed inspections on a part-time basis if she was provided with appropriate protective equipment and a mask. Petitioner stated her desire and request for more time off was because of fatigue. She did not request to work part-time, or protective devices as an accommodation at any time before she chose the option of retirement. Petitioner instituted an action before PERC contending that she was forced to either resign or retire in retaliation for her making of a complaint to Department's inspector general. That action resulted in a recommended order by the PERC hearing officer on April 21, 2004, that recommended that PERC dismiss Petitioner's claim. In that recommended order the hearing officer found as fact that: On June 23, 2003, Welch (Petitioner) sent a letter to District 13 Administrator Beth Englander, which included a doctor's note indicating she needed six to eight more weeks of leave. Englander responded to Welch and told her that, because her leave was exhausted and because of the operational needs of her unit, the Agency would not extend the leave. On June 27, Welch replied to Carr's June 17 letter and asked for accommodation under the Americans With Disabilities Act (ADA). The Agency did not specifically respond to this request. However, Welch was not entitled to ADA leave because she could not perform the essential functions of her job in June when she made her request. The full PERC in a final order of May 11, 2004, adopted the recommended order of the hearing officer, including this finding of fact. Petitioner had not been released by her doctor to return to work and perform her duties at the time she chose retirement in July 2003, and admitted that she was not able to come to work at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing Petitioner's charge of discrimination. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005. COPIES FURNISHED: Melody Welch 34548 Oak Avenue Leesburg, Florida 34788 Carolyn Dudley, Esquire Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 32399-9070 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was discriminated against in employment by reason of his race (black) and handicap.
Findings Of Fact Petitioner was employed by TECO beginning on or about June 21, 1976, last worked for TECO July 18, 1980, and was discharged July 23, 1980, for failing to keep the employer notified on a daily basis of his absence and the reasons for it. (Exhibit 1) Petitioner reapplied for employment on February 19, 1990, and was not rehired. At the time Petitioner was discharged by Respondent, the latter had a firm policy that no former employer of TECO would be rehired. This no-rehire policy was amended in 1989 (Administrative policy L-75, R 6/86)(Exhibit 4, effective 2/1/89), by changing Section IV thereof regarding former employees to allow former employees who voluntarily leave the company subsequent to the effective date of this policy to be considered for regular full time employment. Petitioner was involuntarily separated from employment with Respondent well before the policy change regarding rehiring former employees took effect. Accordingly, he would not be eligible for reemployment under the policy extent at the time he was dismissed from employment or under the new policy respecting those voluntarily leaving employment. Petitioner opined that he was not rehired because of his race (black) and his knee injury, but submitted no facts to support this opinion.
Recommendation It is recommended that the Petition For Relief from employment practices filed by Lynwood B. Graddy against Tampa Electric Company be dismissed. DONE and ORDERED this 15th day of July, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1992. COPIES FURNISHED: Lynwood B. Graddy 1221 13th Avenue Tampa, FL 33605 Stacy Frank, Esquire 702 N. Franklin Street Tampa, FL 33601 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Margaret Jones, Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570
The Issue Whether respondent discriminated against petitioner, either on account of her age or on account of an alleged handicap, in violation of Section 760.10 et seq., Florida Statutes (1989), in terminating her employment?
Findings Of Fact Petitioner Doris Stephens, a woman now approximately 56 years of age, began working for respondent Tom's Foods, Inc., on June 30, 1981, sweeping floors at its plant in Perry, Florida. After various intervening assignments, she ended up as a packer on the potato chip line. Packers remove packages of potato chip bags from a conveyor belt and deposit them in cardboard boxes, which they form by folding. As a packer on the potato chip line, her duties included keeping a record of how many boxes she packed in the course of the shift, and cleaning up at the end of the shift. Headquartered in Columbus, Georgia, respondent Tom's Foods, Inc., employed 15 or more people in Florida for a period in excess of 20 weeks this year and last. On March 6, 1989, respondent fired Ms. Stephens, who has arthritis, for "excessive absenteeism." By all accounts, she was a good employee for her almost eight years with respondent, whenever she was at work. Petitioner's arthritis has not interfered in any way with her ability to perform her work when she was well enough to be at work. Petitioner attributes the absences on account of which she was discharged to visits to the doctor in Gainesville who treated her for arthritis, to certain side effects of medicine she took for arthritis, and to visits to a doctor in Perry, on account of the side effects. Company Policy People who work for Tom's Foods, Inc. as packers are paid nothing when sickness keeps them away from work for periods of up to four days. Without regard to the length of their service, moreover, they are discharged if illness (among other causes) occasions too many absences. The company's written attendance policy provides: 5. Definitions: A period of absence counts from the day an employee stops work until the day he/she returns to work. (This could include one day or three days, but would still count as one period.) If the employee is going to be absent beyond the seventh (7th) day (eight days or more), he/she must request and be granted a Leave of Absence and must provide a doctor's release before returning to work. The six-month period in which an employee's attendance is measured dates from the current date back six months, dropping off the oldest date and adding the newest date. Classification of absences: In order to define "excessive absenteeism" and deal with it in a fair and consistent manner, absences will be classified as either chargeable or non-chargeable: Non-chargeable absences are certain specifically identified absences which will not be charged against an employee's overall attendance record for the purpose of determining excessive absenteeism. These are absences due to: Jury duty. A death in the immediate family which qualifies the employee for funeral leave pay. (Absences due to other family deaths require prior approval from the plant manager.) An on-the-job injury. An official and formally-granted leave of absence (see Policy Statement A-204, Leave of Absence). Chargeable absences are all other absences for any reason; these will be charged against the employe's attendance record and will be used to determine excessive absenteeism. Excessive tardiness/early departure Because of production requirements, employees are expected to be present and at their work stations at the beginning and the end of their shifts. Failure to comply with these requirements will be a basis for disciplinary action in accordance with the provisions of this policy. Definition of tardiness: Any employee not present in his/her department and ready for work on his/her job scheduled starting time is considered "late for work" or tardy. . . . 3. Excessive tardiness/early departure. Excessive tardiness/early departure will be cause for discipline of the employee and may ultimately result in discharge. Tardies or early departures of less than three (3) hours are non-chargeable if prior notice is given to and approval obtained from the supervisor. Prior notice for a late start should be given at the end of the employee's previous shift. Prior notice for an early departure should be given four (4) hours before the end of the shift. Three (3) separate tardies and/or early departures will be counted as one (1) chargeable absence and will be applied in conjunction with all other chargeable absences as outlined in Sections B and D of this policy statement. Excessive absenteeism Excessive absenteeism is defined as six (6) chargeable periods of absence - or a maximum of eighteen (18) days of absence for chargeable reasons - within any six-month period. Excessive absenteeism cannot be tolerated and any employee guilty of such will be discharged under the following procedures: A verbal warning will be issued upon the fourth (4th) period of absence within any six-month period. A written warning will be issued upon the fifth (5th) periods of absence within any six-month period. Termination will occur upon the sixth (6th) period of absence within any six-month period. Respondent's Exhibit No. 12. This version of respondent's policies has been in effect since August 1, 1987, although similar policies have obtained at all pertinent times. An absence of less than five days, although for medical reasons, counts as a chargeable period of absence, if it lasts three hours or longer. A shorter absence, even a few minutes' tardiness, counts as one-third of a period of absence. In the event of a medical disability lasting five or more days, an employee is eligible for a formal leave of absence; and, when an employee obtains such leave, his absence is not charged against him for purposes of the absenteeism policy. Three Minutes Late Ms. Stephens missed work on September 26 and 27, 1988, because she was ill; she attributed her illness to arthritis medication she took. She was absent on October 17, 1988, when she went to Gainesville to see the doctor who treats her for arthritis. She was absent three days running on December 16, 17 and 18, again on account of illness she claimed her arthritis medicine caused. On December 27, 1988, going to see a doctor, because she was ill, made her 2.5 hours late. She missed three hours' work on January 3, 1989, again on account of illness. The next day she was three minutes late to work. Because she did not obtain permission to miss work, either before she was too sick to work or before she was tardy, each incident counted as a third of a chargeable absence. In accordance with company policy, Don Cook, the supervisor who recorded petitioner's three-minute peccadillo on January 4, 1989, spoke to her two days later. He told her she had the equivalent of four periods of absence within less than a six-month period, and that "[t]wo additional chargeable POA before March 26, 1989, will warrant termination of employment." Respondent's Exhibit No. 5. The day Ms. Stephens returned from a two-day absence occasioned by her illness on February 13 and 14, 1989, she received a written warning that a single additional period of absence "before 3/27/89" would result in termination. Respondent's Exhibit No. 6. A final absence, this one also attributed to illness, lasted three days, March 1, 2 and 3, 1989, and resulted in her discharge. Respondent's Exhibit No. 7. Betty Davis, who "may be in her 50s," (T.92) and who may or may not have arthritis, filled the vacancy petitioner's discharge created. Because Ms. Davis, who had been doing similar work on another shift, was "the most senior person with that job classification," (T.91) company policy gave her the choice of taking petitioner's place. Consistent Application In the last two years, respondent has fired a number of other employees for violating its absenteeism policy. At the time of petitioner's discharge, no employee with six periods of absence in six months' time had been retained. Subsequently, however, two employees who had been absent six times in six months were not discharged, because supervisors had neglected to give warnings required by company policy after earlier absences. Although respondent had recently agreed to modify its absenteeism policy to accommodate an employee whose child suffers a "more than likely fatal" (T.98) illness, it was not shown that this employee had been absent six times in a six-month period. On more than one occasion, petitioner denied having any handicap, when asked on company forms. At no time before her discharge did petitioner seek accommodation on account of her arthritis, T.84, 135.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR deny the petition for relief from an unlawful employment practice. DONE and ENTERED this 31st day of December, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1990. COPIES FURNISHED: Dana Baird, Acting Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 William S. Myers, Esquire 3800 One Atlantic Center 1201 West Peachtree Street, N.W. Atlanta, GA 30309 Doris Stephens Route 4, Box 397 Perry, FL 32347
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of her national origin in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner's national origin is Spanish. At all times material hereto, Petitioner was employed by Respondent as a Customer Service Representative (CSR) at its West Palm Beach-Okeechobee branch (Branch Office) and was the only CSR at the Branch Office whose national origin was Spanish. A CSR is commonly known as a teller. At all times material hereto, Petitioner was a single parent. At all times material hereto, Respondent was an employer as defined by the Florida Civil Rights Act of 1992, as amended. In December 1994, Fran Bessent became the branch manager at the Branch Office. At that time and before she became branch manager, the Branch Office was extremely busy on Saturdays, and on a per-hour basis, Saturday was the busiest time of the week. Five to seven CSRs were employed at the Branch Office. In January 1995, Ms. Bessent met with the entire staff of the Branch Office. The meeting was mandatory. At the meeting, she informed the CSRs that, among other things, they would be required to work each and every Saturday and that, in return for working on Saturdays, the CSRs would be given a day off during the week. Petitioner was present during this meeting. At the mandatory meeting, Ms. Bessent also informed the CSRs that, if any one of them had a problem with working on Saturdays, he or she could seek a vacant position at and transfer to another branch office that was not as busy. She further informed the CSRs that, if any of them wanted a transfer, they had the responsibility of applying for the position and requesting the transfer. As branch manager, Ms. Bessent was responsible for preparing the work schedule for all employees. She prepared the work schedule between the tenth and the 15th of each month. Before making the change in the work schedule, reflecting CSRs working all Saturdays, she waited 30 to 45 days before implementing the change. Petitioner had a problem with coming to work each Saturday. She had a child and had problems getting a babysitter each and every Saturday. At all times material hereto, Petitioner had two supervisors, Namrata Gupta and Richard Danca,2 who were assistant branch managers at the Branch Office. The undersigned finds Petitioner's testimony credible that, after the mandatory meeting, she informed a supervisor as to her problem with reporting to work on Saturdays. Petitioner did not inform Ms. Gupta as to the problem with reporting to work on Saturdays. However, an inference is made that she informed Mr. Danca. Even though Petitioner had a problem with coming to work on Saturdays, the responsibility was still upon Petitioner to apply for a position at a branch not as busy and to seek a transfer. At no time did Petitioner apply for a position at another branch or seek a transfer. One CSR, Wendy Morgan, expressed difficulty with working on Saturdays and actively sought a position at another branch office. She was eventually transferred. Prior to her transfer, Ms. Morgan had no unexcused absences. Ms. Bessent made the work schedule available one month in advance. This advance notice provided employees an opportunity to make appropriate arrangements to accommodate the work schedule. Any employee who was not able to work on a particular Saturday in a month was required to notify Ms. Bessent in writing no later than the tenth day of the prior month. Shortly after the new Saturday schedule was implemented, Petitioner failed to report to work on three Saturdays, for which she was scheduled to work, in less than one month. Those Saturdays were March 31, 1995 and April 15 and 29, 1995. She was unable to obtain the services of a babysitter on those Saturdays. Petitioner did not notify Ms. Bessent in advance of her inability to work on those Saturdays. If an employee, including a CSR, at the Branch Office was going to be absent from work, the employee was required to contact his/her supervisor. Petitioner maintains that she contacted her supervisor or “somebody” on the day of the absences in March and April 1995 and informed the person that she was not reporting to work. Even though Petitioner called the Branch Office on the day of her absences, she was unsure as to whether she spoke with one of her supervisors, which was the required procedure. The undersigned finds Petitioner’s testimony credible, and the testimony of Ms. Gupta credible that Petitioner did not contact her regarding the absences. An inference is made that Petitioner spoke with "somebody" who was not one of her supervisors. Petitioner's absence on the aforementioned Saturdays placed a hardship on the Branch Office. The assistant branch managers and the remaining CSRs were forced to cover Petitioner’s position and their own positions and to accommodate the customers. Branch managers had the authority to discipline employees for excessive absences. In making such a determination, the branch managers looked for a pattern of absences, focusing on how the absences impacted a branch office and customer service. The decision was made that Petitioner’s absences were excessive and to verbally counsel Petitioner regarding her absences. On May 11, 1995, the assistant branch managers verbally counseled Petitioner about her excessive absences. The branch managers questioned Petitioner at the counseling session as to whether she had an explanation for her absences. Petitioner failed to provide an explanation. After only two days following the verbal counseling, Petitioner again failed to report to work on Saturday, May 13, 1995. Petitioner called the Branch Office on the same day and indicated that she was not reporting to work. The undersigned again finds Petitioner's testimony credible that, when she called, she spoke with her supervisor or somebody. However, Petitioner did not speak to Ms. Gupta. The absence on May 13, 1995, was Petitioner's fourth absence. The decision was made by Petitioner's supervisors to give her a written warning and place her on a 90-day probation. On May 26, 1995, in a document entitled "Formal Performance Documentation" (FPD), Petitioner's supervisors gave her the written warning and placed her on the probation. In the FPD, the supervisors stated, among other things, that "Improvement is expected immediately" and that "any further incidents involving absences may result in further disciplinary action up to and including termination". Petitioner's supervisors discussed the FPD with her. Petitioner was informed that she could make any comments that she desired to make. The FPD contained a section for Petitioner to make comments, but she did not make any comments on it. Petitioner also refused to sign the FPD. After having been counseled, given a written warning, and placed on probation, Petitioner again failed to report to work. Petitioner was absent on June 16 and 17, 1995. Petitioner admits that she was absent on June 17th but does not recall being absent on June 16th. The undersigned again finds Petitioner's testimony credible that she called the Branch Office on the day of the absence acknowledged by her, and spoke with her supervisor or "somebody." Petitioner did not speak to Ms. Gupta, and an inference is made that Petitioner spoke with "somebody" who was not one of her supervisors. Petitioner violated the terms of her probation. Even if Petitioner was absent only on June 17th, she violated her probation. After the June absences, Petitioner's supervisors discussed the absences with Ms. Bessent. They decided that Petitioner exhibited a pattern of absences in March through June 1995, which constituted excessive absences. They further decided that Petitioner should be terminated. On June 21, 1995, Petitioner's supervisors terminated her employment with Respondent for excessive absences. The termination was memorialized in a document entitled "Termination of Employment and Exit Interview" (TEEI). In addition to the TEEI, Petitioner was verbally informed of the reason for her termination. The TEEI contained a section for Petitioner to make comments, but she did not write any comments. Further, Petitioner refused to sign the TEEI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Chiara T. Spradlin against Washington Mutual Bank, f/k/a Great Western. DONE AND ENTERED this 22nd day of March, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2001.
