Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto pursuant to Section 120.57(1), Florida Statutes. Respondent has been employed as a permanent full-time employee since March 7, 1980 with Petitioner's facility, Landmark Learning Center (hereafter, "Landmark") located in Opa-locka, Florida and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. The purpose of Landmark is to train, program, and modify the behavior of retarded clients so that they may realize their fullest potential for self care and independence. Ulysses Davis is the Superintendent of Landmark. Immediately below him in the chain of command is Deborah Wicks Kahn, Residential Services Director. Hers is a supervisory administrative position also over the entire facility. Within Respondent's unit, which is one of several units within Landmark, there are other supervisors between Respondent and Deborah Kahn. Approximately 1980, Respondent was convicted in federal criminal court of bank fraud but remained at liberty pending resolution of an appeal and various post-conviction relief procedures for reduction of a three-year sentence. Respondent has had a history of leaves of absence during his employment with Landmark. The longest hospitalization established by his medical records was from January 30, 1983 to May 6, 1983 at North Miami Hospital for approximately 96 days or three months; from September 18, 1983 to September 25, 1983 (approximately six days) he was again hospitalized at North Miami Hospital. At that time, ulcer disease was ruled out by Dr. Bertram P. Shapiro (Bell Composite Exhibit 7). These hospitalizations were known to Respondent's supervisors and co-workers and occurred during periods when leave had been authorized, although the nature of the type of leave (i.e., sick leave, annual leave, disability leave, leave without pay) was not established. Everyone at Landmark seems to have known that thereafter Respondent was on medication for his stomach and assumed or had been told by the Respondent that his problem was associated with bleeding ulcers. The usual procedure followed at Landmark requires that any leave of absence of one to two days may be approved by a lower level supervisor on an employee's bi-weekly time sheet. Leaves of absence in excess of one-two days require approval of at least Director Kahn. If the leave requested will be completed within the current two-week pay period, the bi-weekly time sheet may be used by the employee to make his leave request and approval is indicated on the time sheet itself. A time sheet is signed by Director Kahn or a lower level supervisor if the shorter leave is approved, and if it is disapproved, the word "disapproved" and the supervisor's or Director's signature is signed at the bottom. So that multiple time sheets will not be tied up by extended leave requests, a separate written request is required from the employee and a separate outside proof of need therefor must be attached to the employee's written request for all leave requests in excess of a two-week period. For instance, if the request is for extended educational leave, the employee's request must be made in writing with an attached verification of the program from the educational institution. If the request is for extended medical leave, the employee's request must be made in writing with an attached doctor's statement verifying the employee's need therefor. Superintendent Davis requires that his subordinate supervisors get his approval before they grant any extended leave request. In extended leave cases, a separate approval letter is typed, signed by Superintendent Davis and sent certified mail, return receipt requested, to the employee whose leave has been approved. Director Kahn testified she habitually would approve leave requests in increments of one, two and three months after getting guidance from Superintendent Davis or the personnel office. Shortly prior to October 17, 1983, Respondent requested a leave of absence for two months which Director Kahn denied due to an agency-wide survey (inspection). She wrote on the bottom of this request that Respondent would also need to get a supportive medical statement. When the survey concluded, Respondent approached Director Kahn about a leave of absence which she said she would approve if the Respondent provided a supporting medical statement. Director Kahn understood this to be a renewal of Respondent's request for either two or three months of medical or personal leave. Respondent states he understood this to be a request for one year of medical leave, specifically October 17, 1983 through October 17, 1984. Director Kahn again asked for a supporting medical statement. Director. Kahn left on vacation for three weeks immediately following this conversation. Respondent, in response to telephoned information from his lawyer, reported to Federal Prison Camp, Eglin Air Force Base, Florida, and on October 17 and 13, 1983 was processed in accord with federal prison procedures to begin serving his criminal sentence. Part of this process is a thorough medical examination (Bell Exhibit 6) and he thereafter received extensive treatment for his medical problems, including ulcers. After Director Kahn returned from three weeks' vacation, the person she left in charge in her office presented her with a medical statement on Dr. Bertram Shapiro's stationery, dated October 17, 1983, urging that Respondent be granted a one-year medical leave of absence (Bell Exhibit 3). The date this item was stamped into the Landmark personnel office is November 10, 1983. No formal written request of Respondent for one year's medical leave was received by Director Kahn, Superintendent Davis, or the Personnel Office. Despite the absence of a formal written request from Respondent for one year to correspond with Dr. Shapiro's statement dated October 17, 1983, a letter authorizing two months' leave of absence from October 19 through December 19, 1983 was sent by certified mail, return receipt requested, to Respondent at 2146 N.W. 61st Street, Miami, Florida 33142 (HRS Exhibit 1). This letter was signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Residential Services Director, Facility II. It states that Respondent's failure to report for duty December 20, 1983 would constitute unauthorized leave and three consecutive days of unauthorized leave would result in Respondent being deemed to have abandoned his position and to have resigned his position in accord with Section 22A-7.10(2)(a), Florida Administrative Code. Petitioner's November 17, 1993 letter was delivered November 25, 1983 to 2146 N.W. 61st Street, Miami, Florida 33142 and was signed for by Respondent's sister-in-law, Vesturee Brownlee (HRS Exhibit 2). This address continued to be the legal address of Respondent from October 17, 1983 at least through the date of the hearing. Respondent admitted intentionally not notifying Petitioner of any other address where he right be reached until mid-May 1984. Indeed, Respondent and his girlfriend, Ann White, a co-employee, worked diligently until mid-May 1984 to camouflage his criminal incarceration and exact location from everyone at Landmark. Further, this address appears as his legal address on all of his federal prison incarceration documents (Bell Exhibit 6). At hearing, Respondent denied that he received the November 17, 1983 letter but it is clear that he knew its contents because approximately December 19, 1983 Respondent telephoned Director Kahn at her home and requested an extension to a full year's leave dating from the doctor's statement dated October 17, 1984. Director Kahn said three months' leave might be authorized. Despite discussing his ulcer problems, no mention of jail or his actual whereabouts was made by Respondent. Although a written request and new doctor's statement was not submitted by Respondent, his oral telephone request to Director Kahn was acted upon. On January 20, 1984, a letter (HRS Exhibit 3) was sent by certified mail, return receipt requested, to Respondent at his last known address. This letter, signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Director, authorized leave from December 17, 1983 to Friday, April 27, 1984. Instructions were given that if Respondent could not report on Monday, April 30, 1984 at 8:00 a.m., he must, prior to that date, complete a blank leave request showing his anticipated date of return and submit it to "me". Since the letter was signed by two supervisors, I interpret its intent to be that the Respondent could have submitted his completed leave request to either Superintendent Davis or Director Kahn. Again, Respondent was instructed that failure to either report for work timely on April 30 or to submit a written request for extension would result in a determination of abandonment of his position pursuant to Section 22A- 7.10(2)(a), Florida Administrative Code. Petitioner's January 30, 1984 letter was delivered on February 8, 1984 to Respondent's last known address and was signed for by Rosa L. Bell, Respondent's mother (HRS Exhibit 4). Although at hearing Respondent denied that he received Petitioner's January 30, 1984 letter, it is clear that he knew the contents thereof because in at least four telephone conversations with Landmark employees, Ann White and Leah Black, Respondent discussed the concern over his medical condition and absence from the job which had been expressed to Ms. White and Ms. Black by Director Kahn and other Landmark employees. On April 30, 1984, Respondent again did not report to work nor did he complete and submit to anyone at Landmark a written leave request form. In excess of three consecutive days Passed without Petitioner receiving any communication from Respondent. Petitioner did not report to work at any time during this period because he was still involuntarily incarcerated in Lexington, Kentucky. On May 8, 1984, a letter (Bell Exhibit 1) was sent by certified mail, return receipt requested, to Respondent at his Miami address. This letter was signed by Superintendent Davis and by Leah F. Black FOR Director Kahn in Ms. Kahn's absence. This letter, designated a "warning of abandonment letter," states that Respondent's failure to report for work or otherwise make contact after April 27, 1984 had resulted in Respondent being placed on an unauthorized leave of absence and that unless Respondent contacted the signatories with a "reasonable and acceptable" excuse for the unauthorized absence since April 27, 1984 and/or reported for work by close of business on May 17, 1984, a determination of abandonment pursuant to Section 22A-7.10(2)(a), Florida Administrative Code, must be made. Respondent was specifically cautioned that a "response is vital to your continued employment." The letter provided Respondent the option of resigning if he sent a letter of resignation by May 17, 1984. This letter was delivered on May 11, 1984, to Respondent's Miami address. It was signed for by Rosa L. Bell, Respondent's mother (Bell Exhibit 1). At hearing Respondent denied that he received Petitioner's May 8, 1984 letter but it is clear that he knew its contents and import because he admittedly signed and sent a two page typed letter dated May 16, 1984 to Superintendent Davis. (Tr. 151) This letter was received in the Superintendent's office on May 21, 1984. (Bell Exhibit 2) This was four days after the requested due date of May 17, 1984 for any excuse. Respondent's May 16, 1984 letter informed his supervisor for the first time that Respondent was serving a federal sentence for bank fraud, that he was scheduled to be released June 30, 1984; that he felt he was not guilty of crime, that he was unaware of Director Kahn having her vacation during the time when Respondent requested his leave, that he did not confide his jail problem to Director Kahn because he did not trust her, that in December Director Kahn told him she did not receive the Respondent's one year leave request letter from Donna Bailey, that Respondent had been in touch with Ms. Leah Black since 1983 and recently hand informed Ms. Black of his present location due to rumors, that before leaving Landmark, Respondent requested a leave of absence of one year, that at that time Respondent had accumulated four months of accrued leave and requested four months leave with pay and the remainder as leave without pay, that Director Kahn told him she could not approve his leave request without a physician's statement and he had attached such a statement to his letter request before he left Landmark and gave it to Donna Bailey. Superintendent Davis and Director Kahn believed Respondent to be sick until receipt of his letter dated May 16, 1984. That date is the first date either had actual knowledge of his physicial location and that he was in jail. In Respondent's absence, his supervisors were required to hire temporary employees to fill his position as Behavior Program Specialist. Sometimes they were not able to hire any temporary fill-in personnel and this created additional work for other full-time employees in covering Respondent's caseload. Sometimes the temporary help they were able to hire were not of a comparable skill level with Respondent or someone who might have taken the job full-time. As long as Respondent was on a leave of absence they were unable to advertise for a skilled full-time replacement. This had a detrimental effect on Landmark's in-depth applied behavior modification program. Superintendent Davis determined that Respondent's admission of involuntary incarceration, even if coupled with institutional medical care, did not constitute a reasonable and acceptable excuse as requested in Petitioner's May 8, 1984 letter. This determination is consistent with Landmark's internal policy. Superintendent Davis has previously refused all employees' requests for extended leave for the purpose of serving involuntary jail time. He testified that he would not have granted any of Respondent's previous leave time nor any extensions thereof if the jail sentence had been known to him. His basis for this policy is that criminal sentences are detrimental to employees' functions as role models. He applied this policy to Respondent because Respondent's position as a Behavior Program Specialist requires intensive leadership and role modeling/programming of retarded clients. Superintendent Davis also considered the Respondent's failure to disclose his incarceration to be dishonest dealing with the agency. Superintendent Davis further determined that the date of his receipt of Respondent's May 16, 1984 letter was beyond the allotted time for such excuse. Respondent maintained that he was diagnosed early on the morning of October 17, 1983 by Dr. Shapiro as needing a year's ulcer treatment, applied for and got the leave of absence from Director Kahn some time between Noon and 2:00 P.M. that same day, and thereafter, between 4:30 - 5:00 P.M., he was telephoned by his lawyer to report that very day to federal prison in Eglin, Florida. Respondent says that he had a normal appointment with Dr. Shapiro at 10:45 A.M., October 17, 1983, and at that time received the statement indicating need for a year's leave of absence (Bell Exhibit 3), returned to Landmark, wrote out on a legal pad what was apparently an explanation to Director Kahn that he wanted to use 4 months of accumulated leave with pay (annual and sick leave combined) and to receive 6 months leave without pay to cover October 17, 1983 through October 17, 1984; that he then gave this to Donna Bailey to type, that Director Kahn signed her approval on the typed letter and he returned his letter and medical letter to Donna Bailey. Stephanie Green states that she was with Respondent at the doctor's office on October 17, 1983, and saw him give his typed letter request, the medical letter, and his timesheets to Donna Bailey. Ms. Green does not recall any approval at the bottom of Respondent's letter. Ann White, Respondent's girlfriend, supports some of this information but contradicts much by saying she saw Respondent's letter request at her home on a separate occasion and saw the doctor's letter before that date when hue showed it to her at Landmark. She then says that at the end of October 1983, she examined Respondent's personnel file and saw the Respondent's typed letter request with Director Kahn's approval written at the bottom with the medical letter. These witnesses may have seen another earlier leave request, but timesheets and approval on the bottom of an employee's request would be inappropriate for extended leave request and approval. Director Kahn absolutely denies giving a year's approval in writing at any time and denies ever receiving a typed letter request for one year signed by Respondent. Her secretary was not Donna Bailey but was Sandra Williams. Based upon observation of the candor and demeanor of the witnesses testifying and their credibility or lack thereof, I choose to believe Director Kahn. Independent of the credibility of the live testimony, I also find supportive of Ms. Kahn's testimony the Respondent's admission that he gave his documents, if they were given, to someone not her secretary. Respondent further stated that at that time before his lawyer's call he intended a vacation to get away from it all instead of immediate medical care. Also clearly supportive of Ms. Kahn's testimony is Bell's Exhibit 2 wherein Respondent admits Director Kahn told him in their December phone conversation that she did not receive his letter request for a year's leave and that he was not approved for a year but might be approved for an additional three months after the original December 19, 1953 date. On June 6, 1984, Superintendent Davis sent a letter, (HRS Exhibit 5), certified mail, return receipt requested, to Respondent Bell at Antaeus Unit, Post Office Box 2000, Lexington, Kentucky, 40511. This was the return address on the envelope of Respondent's May 16, 1984 letter. At hearing, Respondent denied receipt of this letter but was admittedly incarcerated by the federal government at that location at that time and did not return to Miami until June 17, 1984. Petitioner's June 6, 1984 letter was received at that address on June 11, 1984, and was signed for by "D.D. St (illegible)" (HRS Exhibit 5). The undersigned finds that Respondent did receive on that date Petitioner's June 6, 1984 letter which stated that Respondent's failure to report on April 30, 1984, and thereafter was now considered abandonment of his position under Section 22A- 7.10 (2)(a) and that he was deemed to have resigned as of the date the letter was received or date it was returned to Petitioner if that occurred. The undersigned is not impressed by Respondent's analysis of Bell Exhibit 5. This item was found among Petitioner's business records, in Respondent's Personnel file. It is a handwritten, undated memorandum which reads in one handwriting "N. Bell went out on med. leave but last med slip is 10/83. Needs one every 30 days even the leave is for year-they keep jumping back and forth on AL to SL, etc." To which, another's hand has replied, "notified Bill Miller 2/13/84 will send in." At best, its message is ambiguous and one obvious interpretation is that monthly doctor's statements would be required by Petitioner from Respondent although the payroll employees already had the medical statement dated October 17, 1983 specifying one year, and that some confusion existed as to how to debit the Respondent's four months accumulated annual and sick leave during his absence. Under the foregoing findings of fact, Respondent abandoned his position upon his unexcused absence for three consecutive days after April 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law set forth herein, it is RECOMMENDED that, Respondent having been absent without approval for 3 consecutive workdays he be deemed to have abandoned the position of Behavior Program Specialist and to have resigned from the Career Service effective Jun 6, 1984. DONE AND ORDERED this 1st day of February, 1985, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1985. COPIES FURNISHED: Sharon Langer, Esquire 255 Alhambra Circle Suite 312 Coral Gables, Florida 33134 John Abramson, Esquire 799 Brickell Avenue Suite 800 Brickell Center Miami, Florida 33131 Gilda Lambert Secretary, Dept. of Administration 435 Carlton Building Tallahassee, Florida 32301 David H. Pingree Secretary, Dept. of Health & Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Senior Clerk for Respondent. At sometime prior to December 19, 1988, Petitioner purchased a nonrefundable airline ticket departing on December 23, 1988, and returning on December 30, 1988. Thereafter, Petitioner requested 40 hours of annual leave for the workdays of December 23, 1988, and December 27-30, 1988 and requested her personal holiday for the workday of December 28, 1988. On December 19, 1988, Petitioner was informed that she had 21.2 hours of available annual leave and was granted 16 of those hours for the workdays of December 23, 1988, and December 27, 1988. Petitioner's request to take her personal holiday on December 28, 1988 was denied, as was her request for annual leave for the period of December 28-30, 1988 denied. Upon being advised that a portion of her leave request had been denied, Petitioner told her supervisor about the airline ticket and that she "could not afford to lose my investment of my air-fare." Her supervisor, in turn, advised Petitioner that if she were absent December 28-30, 1988 she would be deemed to have abandoned her position. Notwithstanding such knowledge, Petitioner was absent from work without authorized leave for the three consecutive workdays of December 28-30, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June 1989. JANE C. HAYMAN 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 5th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1185 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 3. Not supported by competent and substantial evidence. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 5. Addressed in paragraph 4. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ms. Nancy M. Morrison 1925 Coolidge Hollywood, Florida 33020 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Respondent discriminated against the Petitioner on the basis of disability, in violation of the Florida Civil Rights Act of 1992, Section 760.10 et seq., Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rivero was first employed by Miami-Dade County in November 1984, apparently as a security guard with the Metropolitan Dade County Park and Recreation Department. He took a physical examination and informed the doctor conducting the examination that he suffered from cluster migraine headaches and that they occurred about six to eight times each month. Mr. Rivero subsequently left his employment with Miami-Dade County, but was re-hired in September 1986. At the time he was re-hired, he advised the recruiting officer that he suffered from migraine headaches. Mr. Rivero was employed by the Metropolitan Dade County Park and Recreation Department from September 1986 until August 10, 1999. From January 1996 through May 1999, Mr. Rivero was employed as a park ranger by the Metropolitan Dade County Park and Recreation Department, and he worked at the Metrozoo. His job responsibilities included patrolling areas of the zoo, assisting in emergencies, providing information to patrons, and providing for the safety of patrons and security for Miami-Dade County property. Because of his migraine headaches, Mr. Rivero often was absent from work, and he was advised several times by his supervisors, in documents entitled Record of Counseling, that the frequency of his absences was unacceptable. The most recent Record of Counseling submitted at the hearing by Mr. Rivero was dated November 24, 1997. On January 10, 1995, Mr. Rivero consulted with Ray Lopez, M.D., a neurologist, about his recurring migraine headaches, which had become more intense and frequent after Mr. Rivero was involved in an automobile accident in November 1994. Dr. Lopez diagnosed Mr. Rivero with migraine headaches, with post-traumatic, likely cervicogenic, intensification. Dr. Lopez treated Mr. Rivero for his headaches from January 1995 until at least December 1999. During this time, Mr. Rivero was seen by Dr. Lopez approximately twice a month. Between 1995 and 1999, Mr. Rivero's migraine headaches continued to intensify in severity and frequency. By January 1999, Mr. Rivero found it increasingly more difficult to carry out his duties as a park ranger at Miami-Dade County's Metrozoo when he had a headache, and his headaches were occurring almost daily. Between January 1999 and March 1, 1999, Dr. Lopez wrote several notes documenting Mr. Rivero's inability to work on specified days because of the headaches. Effective March 29, 1999, Mr. Rivero's work schedule was cut from 39 hours per week to 16 hours per week. Mr. Rivero had previously worked Saturdays through Wednesdays, with Thursdays and Fridays off. As a result of the change, Mr. Rivero was assigned to work on Saturdays and Sundays from 10:00 a.m. to 6:30 p.m. Mr. Rivero last reported for work at the Metrozoo on or about May 22, 1999. Mr. Rivero was unable to continue working because of the frequency and severity of his headaches. Nonetheless, Mr. Rivero called the Metrozoo office regularly between May 22, 1999, and July 18, 1999, to report that he was absent because of illness. He did not, however, have any intention of returning to work after May 1999 because he believed he could no longer perform the duties required of a park ranger.3 In July 1999, Diane Condon, the personnel manager for Metropolitan Dade County Park and Recreation Department, was told by Mr. Rivero's supervisor at the Metrozoo that Mr. Rivero had been absent for quite some time, that he had exhausted his paid leave time, and that the reason for his absences was medical. It was suggested to Ms. Congdon that Mr. Rivero be offered leave under the Family Medical Leave Act of 1993. In a letter dated July 12, 1999, from John Aligood, Chief of the Human Resources Division of the Metropolitan Dade County Park and Recreation Department, Mr. Rivero was notified that he had been preliminarily granted family/medical leave but that he would have to present a certification from his doctor within 15 days of the date he received the letter in order for his eligibility for such leave to be finally determined. Mr. Rivero was advised in the July 12, 1999, letter that continuation of the leave was contingent on receipt of medical certification from his doctor; that he must furnish the certification within 15 days after he received the letter; and that "[f]ailure to do so will result in relinquishing FMLA leave; you will then be required to return to the full duties of your job or resign, or you will be terminated for abandonment of position." The July 12, 1999, letter was sent to Mr. Rivero via certified mail, and he picked it up on July 22, 1999. Mr. Rivero contacted Ms. Congdon on July 22, 1999, and told her that Dr. Lopez was unavailable at that time to complete the medical certification. Ms. Congdon advised him that the medical certification was required for the family/medical leave to continue.4 In a letter dated August 10, 1999, which was prepared by Ms. Congdon, Mr. Rivero was advised that his employment had been terminated for abandonment of position because he had failed to provide the medical certification required for continuation of family/medical leave by July 26, 1999, which was 15 days after July 12, 1999.5 Summary The evidence presented by Mr. Rivero is insufficient to establish with the requisite degree of certainty that his employment as a park ranger with the Metropolitan Dade County Park and Recreation Department was terminated because of his medical condition. Mr. Rivero himself testified that he believed he was unable to perform the duties required by his job as of May 1999 because of his migraine headaches and that he had no intention of returning to work subsequent to May 1999. The evidence presented by Mr. Rivero is sufficient to support the inference that, prior to July 12, 1999, Mr. Rivero did not advise his supervisor at the Metrozoo or anyone else in the Metropolitan Dade County Park and Recreation Department that he did not intend to return to work after the end of May 1999. His being placed preliminarily on family/medical leave as of July 12, 1999, did not harm Mr. Rivero but, rather, resulted in his health benefits being continued until his termination on August 10, 1999.
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 Petition for Relief of Ruben Rivero. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 12th day of November, 2002.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Wilson Yawn, Maintenance Engineer, Chipley, Florida. On April 15, 1985, Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment. Petitioner was absent from work without authorized leave on August 17, 18, 19, and 20, 1987. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent. Petitioner was formally advised by certified letter dated August 21, 1987 that Respondent considered him to have abandoned his job and to have resigned from the Career Service.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent has been a permanent full-time employee of petitioner's for over 22 years and at the time of the alleged abandonment was employed as a Engineer Technician III in petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphreys' jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and respondent, the position of survey crew chief. Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work before the end of this 6 months leave of absence without pay. The record does not reflect when respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3). Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 25, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 petitioner placed respondent on unauthorized leave of absence without pay. On September 27, 1984 petitioner was advised by Roger Tanner, respondent's probation officer, that respondent had bean incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify respondent that he had been placed on unauthorized leave without pay on September 27, 1984 until October 4, 1984 when petitioner delivered to respondent a letter from Skinner advising him that he had abandoned his position with the petitioner. Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983; (3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984. The evidence reflects that respondent had a "drinking problem" of which petitioner was aware but did very little "counseling" with respondent in this regard. On October 1, 1984 Mr. Markham, Humphreys Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that respondent's "problem would be resolved in a few days" or at least "by the weekend." Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because respondent did not have a valid driver's license. Walter H. Skinner had been delegated authority to take this type action against respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that it be found that respondent did not abandon his position and resign from the Career Service as contemplated under Rules 22A-7.1O(2)(a) and 22A-8.O2, Florida Administrative Code and that respondent be reinstated to his position of Engineer Technician III as of September 27, 1984. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Donald K. Hudson, Esquire Post Office Box 948 Jasper, Florida 32052 Daniel C. Brown Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paul A. Pappas Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel 562 Hayden Burns Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether Respondent violated Subsection 760.10(1), Florida Statutes (2006), by discriminating against Petitioner on the basis of her age or disability when Respondent terminated Petitioner from her employment.
Findings Of Fact Respondent is a rehabilitation and nursing center located in Port Richey, Florida. Petitioner began her employment with Petitioner on August 2, 2004, as a dietary aide and remained employed as a dietary aide until the date of termination from employment on June 26, 2007. As a dietary aide, Petitioner provided assistance in the kitchen area before, during, and after meals. Petitioner cleaned tables, assisted with food carts, removed garbage, and performed other physical duties to assist with the meal service. Petitioner sustained a fractured wrist in an accident at her home on March 27, 2007. Respondent provided unpaid leave for Petitioner, pursuant to Family and Medical Leave Policy (the FMLA Policy). The leave to which Petitioner was entitled as a job benefit began on March 27, 2007. Petitioner was eligible for up to 12 weeks of unpaid leave under the FMLA Policy. On April 20, 2007, the treating physician for Petitioner at the Center for Bone & Joint Disease provided a note to Respondent stating that Petitioner was unable to return to work for eight weeks. Respondent correctly excused Petitioner from work until June 15, 2007. On April 24, 2007, the treating physician for Petitioner completed a Certification for Health Care Provider Form and presented the form to Respondent. The form indicated that Petitioner’s leave would expire on June 15, 2007. Petitioner completed, signed, and provided to Respondent a Request for Leave of Absence Form, indicating her anticipated return date to be June 15, 2007. Respondent provided leave for Petitioner until June 19, 2007. It is undisputed that, seven days before returning to work, the FMLA Policy required Petitioner to provide a medical clearance or a doctor’s statement that she was physically able to resume the normal duties of her employment. Shortly after May 1, 2007, Petitioner received a memo from the administrator for Respondent reminding Petitioner that her “FMLA leave EXPIRES on: 6/19/2007.” In late May 2007, Ms. Joann Robinson, a co- worker and former cook for Respondent, spoke to Petitioner by telephone and requested that Petitioner contact the supervisor about Petitioner’s return to work. Petitioner acknowledged to Ms. Robinson that Petitioner would contact the supervisor. Ms. Robinson informed the supervisor that she spoke with Petitioner and that Petitioner stated she would contact the supervisor. When the supervisor did not hear from Petitioner, the supervisor and Ms. Laura Gilbreath, payroll administrator for Respondent, attempted to contact Petitioner by telephone approximately one week prior to the expiration of the FMLA leave. The purpose of the telephone call was to confirm that Petitioner was able to return to work upon expiration of her FMLA leave. The supervisor and Ms. Gilbreath were unable to reach Petitioner because her telephone service was disconnected. Petitioner never contacted Respondent prior to the expiration of the FMLA leave on June 19, 2007. Petitioner never contacted her supervisor about returning to work and never presented a medical clearance or doctor’s statement that she was physically able to resume her normal duties. Respondent terminated Petitioner from her employment on June 26, 2007, for exceeding the leave allocated under the FMLA Policy and failing to contact the facility or report back to work with proper documentation prior to the expiration of her FMLA leave. Respondent has terminated other employees who failed to contact the facility or return to work upon exhaustion of leave under the FMLA Policy, and there is no evidence to suggest Respondent treated Petitioner any differently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 4th day of March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sherry Malter 9415 Palm Avenue Port Richey, Florida 34668 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Benjamin D. Sharkey, Esquire Jackson Lewis St. Joe Building 245 Riverside Avenue, Suite 450 Jacksonville, Florida 32202
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
Findings Of Fact On April 18, 1988, Respondent, Jack Schenkel, was employed as one of fifteen fire fighter/emergency medical technicians, (EMT), with the Tarpon Springs Fire Department. He was scheduled to work on C shift which was to start at 7 am and extend for 24 hours until 7 am, April 19, 1988. In accordance with normal procedure, he then would have been off for 48 hours before his next shift. At approximately 1:30 am on April 18, Lt. Dennis L. Jennings, B shift supervisor, was on duty at the main fire station, when he received a phone call from the Respondent who indicated he had had a serious quarrel with his girl friend. Respondent indicated she was drunk and had "trashed" his house and he needed to stay at home to insure his possessions were not ruined. Respondent's actual request was for a personal day off, and when Mr. Jennings indicated there was no such thing for City employees, Respondent asked for a vacation day. It is and has been, for as long as Respondent has worked with TSFD, Department policy that vacation pay can only be authorized by personnel above the grade of Lieutenant, and while the actual paper request may, at times, be signed after the fact, the authorization must be received prior to departure so that the Department has time to rearrange schedules to accommodate the absence. When Mr. Jennings advised Respondent of this, though evidence indicates he was aware of it, Respondent indicated he had had no sleep and as a result, Mr. Jennings suggested that Respondent take a day of sick leave. However, Mr. Jennings also reminded Respondent that in accordance with an order issued in writing by the Fire Chief in 1979 to the effect that requests for sick leave must be called in between 6 and 6:30 am of the day in question, prior to the start of the duty day, he would have to call in during the prescribed time to arrange for his sick leave. Though a Lieutenant can take the information, he does not have the authority to approve the leave. As a matter of fact, however, bona fide sick leave, called in in conjunction with the Chief's order, at an appropriate time, is never disapproved. Respondent did not call in between 6 and 6:30 am on April 18 to request sick leave as he had been instructed to do by Lt. Jennings. Mr. Lopes, also a fire fighter, who was scheduled to work on the same shift, arrived at approximately 6:50 that morning. When he spoke to Lt. Jennings to ask where he would be assigned, Jennings advised him that Respondent had not come in and Lopes would fill his slot. Jennings told Lopes what Respondent had told him concerning the house and like matters. At that point, Lopes advised Mr. Jennings that Respondent did not own the house where he was living nor was he the prime tenant. To verify this, Jennings telephoned Respondent at home at approximately 7:05 am. When Respondent answered the phone and Jennings asked why he had not reported for duty, Respondent indicated that he intended to take a sick day. Jennings reminded him that he had not called in properly and told him that if he took the time off, there would be repercussions. According to Jennings, Respondent did not seem concerned about that possibility, replying something like, "Oh well, whatever." Lt. Jennings logged this call in and reported the situation to his relief, Lt. Parker, the incoming shift lieutenant. He also discussed the matter the following morning with Assistant Chief Carr and at Carr's request, submitted a written statement of what had happened. According to the City regulations, sick leave, such as was requested by Respondent here, can be used for situations where the employee himself is sick or disabled; where the employee has an appointment with a physician or dentist; where the employee in under medical quarantine; and as a result of a death in the immediate family of the employee, in which case, only four days leave are authorized. Girl friends are not included within the definition of "immediate family." In the opinion of Mr. Carr, sick leave is not authorized for circumstances such as were described by Respondent in his reasons for not coming in. Under the terms of the City regulation, taking a sick day for a reason not within the above-described categories, constitutes grounds for discipline. When Respondent came to work on April 21, 1988, Chief Carr called him in and asked for an explanation of why Respondent had failed to report for duty on April 18. In response, Respondent told him the same story he had related to Lt. Jennings. In the course of their conversation, Carr advised Respondent that he, Respondent, knew from prior incidents that sick leave was not appropriate under these circumstances. Respondent replied that his girl friend was sick and he was concerned about her safety, and showed Carr a copy of the police report regarding the incident on April 18 which reflected that she was highly intoxicated. Carr advised Respondent that the circumstances did not justify or authorize sick leave, and that action would be taken to terminate him from employment. With that, Respondent left. After Respondent departed, Chief Carr reviewed his personnel records in detail and saw the number of sick days Respondent had taken since he began work with the Department, as well as his prior disciplinary record. Respondent's personnel record shows that in the years he has been an employee of the City, he has taken 44 sick days accounting for 1,056 hours of sick leave. He then prepared a memorandum outlining it which he forwarded to the City personnel director who concluded that termination was appropriate. Respondent's personnel records reflect the following actions: Memorandum 7/82 from Respondent's shift leader indicating he arrived 2 hours 9 minutes late for work. When questioned, he related his alarm did not go off due to a possible power failure. Memorandum 8/19/82 from Respondent's supervisor reflecting he was again late for work by 1 hour 45 minutes. On 2/7/83, Respondent called in for sick leave at 6:40 am, 10 minutes after the close of the call-in window. Respondent was given a written reprimand. On 3/23/83 Respondent reported for work at 7:11 am without calling in. He indicated he had a flat tire. He was ordered to take a one day suspension without pay. On 5/2/83 Respondent was found asleep on duty with earphones on his head, a violation of rule 5, Section 4, Civil Service Rules and Regulations of the City of Tarpon Springs. For this offense, Respondent was given a warning. On October 27, 1983, Respondent was warned and counseled regarding the prior discrepancies in his job performance including the incident involving his sleeping on duty and his 17 incidents of sick leave within a relatively short period. On October 7, 1985, Respondent was again counseled on his excessive use of sick days which then amounted to 26 despite a counseling on the matter in December, 1984 and in October, 1983. On February 7, 1986, Respondent was disciplined for calling in at 6:48 am, on February 4, 1986, outside the window for sick leave call in. He was given a written warning and a one day suspension without pay. On August 7, 1987, Respondent called in sick at 6:17 am which was within the parameters of the Chief's order. As is the Department's policy, however, the Lieutenant on duty called back several minutes later to check on the employee, and found that Respondent was not sick. In fact, he had left to go to the store to pick up a part for the truck on which he was working. Since this constituted an abuse of sick leave, he was given a three shift suspension without pay. On January 28, 1988, Respondent was counseled for poor report writing and advised to take greater care in doing so. Even after two warnings to this effect, his reports were still incorrect and incomplete and he was given a written warning. Chief Carr is of the opinion that Respondent's improperly using sick days, and his failure to call in to request sick leave on time, demonstrates a disregard for the City's leave program and regulations. After the incident on April 18, Chief Carr had a report prepared analyzing Respondent's sick leave from the beginning of his employment with the Department in 1982. This report showed a pattern wherein Respondent would work one shift, do overtime and exchange days with other fire fighters so he could work two days in a row, and thereafter take several sick days in a row. It was apparent from this analysis that Respondent was manipulating the sick leave process for his own benefit and the testimony of Ms. Evans that he was moonlighting with Medic-One, an ambulance company in Pinellas County, on some of the days he had called in sick, tends to support this conclusion. Under the terms of the Personnel Rules of the City of Tarpon Springs, a fire fighter earns 15 days sick leave per year, which, if not used, can be carried over to succeeding years. Chief Carr has not had a sick leave analysis prepared on any other employee within the Department even though, to his understanding, there are others who have taken off an equivalent number of sick leave days. To the best of his understanding, however, the other employees utilized their sick leave in an appropriate manner. Respondent has been employed by the Department since May, 1982 as a paramedic. He admits the incident on April 18. He went to bed at approximately 10 pm on the evening of April 17, 1988 because he had to go to work the next morning. He was awakened around midnight by his girl friend who was hitting him, throwing things around, and screaming. She was very intoxicated. Respondent tried to avoid her and called the police who tried to quiet them both down. After the police left at about 12:30 am, Respondent went to sleep on the couch. At approximately 1:30 am she started fighting with him again and to avoid any further dispute, he took some of his things, left the apartment and made the first call to Lt. Jennings. In that conversation, according to Respondent, he advised Jennings he was tired and upset and needed the day off but to his recollection, did not request any specific type of time off. At the time in issue, Respondent admits to having both sick leave and vacation time adequate for the following day accrued. According to Respondent, Jennings did not say Respondent could not have the time off nor did he say how it would be recorded. He also did not tell him to call back or to do anything else in order to secure approval for his time off. However, in light of the fact that Respondent had obviously been aware of the requirement to call in for sick leave within a certain time window, and in light of the uncontroverted evidence that he failed to do so, whether Jennings advised him to call in or not is irrelevant. After talking to Lt. Jennings, Respondent intended to spend the night on his boat. However, he was too upset and was unable to sleep and he merely sat on the boat until just before dawn when he went back to his apartment. He did not sleep at all that night. Jennings called at about 6:30 am. During the conversation, Jennings talked to him about whose apartment it was and Respondent, tired and upset, told Jennings that since he'd already given him the time off, he could categorize it any way he wanted. Respondent had to find a place to stay and put his things in storage and he was quite tired. He did not feel he could go to work, and since Jennings did not direct him to come to work, he did not do so that day. Respondent reported to work the next shift he was scheduled for and was called in for an interview during which he was advised he was being terminated for abuse of sick leave. He attempted to tell the Chief he had not requested sick leave and explain what had happened, but Carr advised him he was nonetheless going to recommend Respondent be fired. Respondent does not dispute his prior disciplinary record but denies ever having called in on sick leave when he was not really sick in order to work someplace else. The testimony of Ms. Evans outlining several days on which Respondent worked for Medic-One when he appears to have called in on sick leave shows otherwise. Respondent would not object to a use of vacation time for the absence on April 18, 1988. It appears from the evidence that had Respondent not had so extensive a history of prior disciplinary actions, his absence here may well have been charged to vacation leave to protect him. Vacation time, when properly authorized, can be used for any purpose whatever. However, it must be properly approved in advance by someone higher than a Lieutenant. Chief Carr admits that had Respondent called and spoken to him that night, he might have been given vacation leave. However, in this case, no consideration was given to allowing Respondent to take vacation time for this absence because of his prior record. In making his decision to terminate the Respondent, Chief Carr considered not only the Respondent's disciplinary record, but also his commendations. Nonetheless, the good in Respondent's file did not justify overlooking the bad and his judgement in this case is not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Jack Schenkel, be discharged from employment with the Fire Department of the City of Tarpon Springs. RECOMMENDED this 10th day of October, 3988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 10th day of October, 1988. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 5. Accepted and incorporated herein. 6. Accepted and incorporated herein. 7. Accepted. 8. Accepted and incorporated herein. 9 - 10. Accepted and incorporated herein. 11. Accepted and incorporated herein. 12. Accepted. 13. Accepted and incorporated herein. Irrelevant. Accepted. 16 - 19. Accepted and incorporated herein. 20 - 21. Accepted and incorporated herein. 22. Accepted. 23 - 36. Accepted and incorporated herein in substance but not in detail. 37. Accepted. 38 - 39. Accepted and incorporated herein in substance. 40 - 42. Accepted and incorporated herein. For the Respondent: 1 - 2. Accepted and incorporated herein. 3 - 5. Accepted and incorporated herein. 6 - 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: NICHOLAS J. SARGENT, ESQUIRE SARGENT, REPKA, AND COVERT, P.A. 2963 GULF-TO-BAY BLVD., SUITE 320 CLEARWATER, FLORIDA 34619 ROBERT F. MCKEE, ESQUIRE 1724 EAST 7TH AVENUE TAMPA, FLORIDA 33605
The Issue The issue is whether Respondent committed a unlawful employment practice by discriminating against Petitioner based on an alleged disability in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent initially hired Petitioner as a legal secretary in 1997. At that time, Petitioner worked in Respondent's office in Chipley, Florida. Petitioner suffered no continuing medical problems in 1997. In a memorandum dated April 17, 2001, Respondent's staff advised Petitioner that employees using more leave than they had earned would have to be place on "leave without pay" for the time used in excess of time earned. In a letter dated May 14, 2001, Petitioner advised Respondent that she intended to resign her position as a legal secretary effective May 25, 2001. Petitioner wrote the letter because she was moving to Apalachicola, Florida. Instead of accepting Petitioner's resignation, Respondent offered and Petitioner accepted a transfer as a legal secretary in Respondent's office in Port St. Joe, Florida. Petitioner was able to continue working for Respondent without a break in service. In the summer of 2002, Petitioner began to suffer from an unexplained shortness of breath. Neither Petitioner nor Respondent knew the cause for the symptoms Petitioner was experiencing. By letter dated October 9, 2002, Respondent once again advised Petitioner that she could not use more leave time than the amount she earned. On at least one occasion, Petitioner's excessive time-off caused a reduction in her salary for "leave without pay." In a memorandum dated October 11, 2002, Respondent's staff documented concerns about Petitioner's attendance and performance. One of the concerns was Petitioner's chronic failure to file reports in a timely manner. Petitioner was late in filing the reports even though Respondent allowed her to prepare them at home and send them to Respondent by facsimile transmission from her husband's place of business. In February 2003, Petitioner still did not have a medical diagnosis to explain why she was sick and unable to work. On or about February 13, 2003, Petitioner and her supervisor agreed that Petitioner would take leave without pay pending an excuse from a doctor that she was unable to work. Petitioner's testimony that Respondent offered to let Petitioner have an indefinite leave of absence is not persuasive. On March 12, 2003, Petitioner provided Respondent medical documentation, excusing her from work due to unspecified illness through March 17, 2003. On or about March 14, 2003, Petitioner was admitted to the hospital. Subsequent medical tests revealed blood clots in Petitioner's lungs. Petitioner was eventually released from the hospital with prescriptions for blood thinning medication and oxygen. On or about March 20, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor's note, dated March 18, 2003, excused Petitioner from work for two weeks. On or about April 2, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor stated that Petitioner had been hospitalized with a serious condition called pulmonary embolus and that she continued to have significant symptoms of shortness of breath and fatigue. The doctor's note stated that Petitioner would not be able to work for six weeks. On May 5, 2003, Jackie Pooser, Respondent's Administrative Director, talked to Petitioner by telephone. Ms. Pooser advised Petitioner that she needed to provide another doctor's excuse by May 8, 2003, if she was still under a doctor's care and unable to return to work. Otherwise, Respondent expected Petitioner to resume her duties in Respondent's office in Port St. Joe, Florida. Petitioner was Respondent's only secretary in Port St. Joe, Florida. That office was in dire need of a performing secretary. However, apart from her illness, Petitioner was not anxious to return to work in the Port St. Joe office because she had a personality conflict with the only full-time attorney who worked there. During the May 5, 2003, telephone conversation, Petitioner did not tell Ms. Pooser that she was disabled or request any on-the-job accommodation. Instead, she led Ms. Pooser to believe that she intended to return to her job when authorized to do so by her doctor, hopefully in June 2003. During the hearing, Petitioner admitted that she never requested that Respondent provide her with any type of accommodation. In a letter dated May 6, 2003, Ms. Pooser confirmed the May 5, 2003, phone conversation. In the letter, Ms. Pooser further reminded Petitioner that her medical excuse expired on May 8, 2003. The letter referred to the Public Defender Classification & Pay Plan requirements for a doctor's excuse without which an employee is considered to have abandoned his or her employment position. Petitioner's medical excuse expired on May 8, 2003. Petitioner did not return to work or provide Respondent with further medical documentation. On May 16, 2003, Respondent verbally terminated Petitioner by telephone. A follow-up letter dated May 19, 2003, stated that Petitioner's work performance had not been satisfactory for some period of time. The letter also stated that Petitioner had abandoned her position by failing to provide Respondent with a doctor's excuse. Petitioner's testimony that she requested her physician to send the medical excuse directly to Respondent by facsimile transmission is not persuasive. Petitioner did not call Respondent to inquire whether Respondent received the excuse or to offer any other explanation for failing to send medical documentation to Respondent. Petitioner's doctor subsequently released her to return to work. Petitioner received unemployment compensation for at least one month. In August 2003, Petitioner began working for a real estate company, checking guests into resort rentals. She resigned that job after working for one month. Petitioner admitted during the hearing that she was not disabled when she worked for Respondent. According to Petitioner, she was diagnosed as being disabled in October 2003, after experiencing further medical problems. However, Petitioner has provided no competent (non-hearsay) evidence of that diagnosis. Respondent's attendance and leave policy states as follows in relevant part: STATEMENTS OF POLICY * * * The granting of any leave of absence with or without pay shall be in writing and shall be approved by the proper authority within the Public Defender Office. An employee who is granted leave of absence with or without pay shall be an employee of the Public Defender while on such leave and shall be returned to the same position or a different position in the same class and same work location upon termination of the approved leave of absence, unless the Public Defender and the employee agree in writing to other conditions and terms under which such leave is to be granted. Any leave of absence with or without pay shall be approved prior to the leave being taken except in the case of an emergency where the employee must be absent prior to receiving approval from the proper authority for the absence. * * * (b) If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the Public Defender may place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays may consider the employee to have abandoned the position and resigned from the Public Defender's Office. * * * 3.14 FAMILY AND MEDICAL LEAVE In accordance with the federal Family and Medical Leave Act (FMLA) regulated by the U.S. Department of Labor, eligible employees can receive up to 12 weeks of unpaid leave during any 12-month period for the following reasons: . . . taking care of one's own serious health condition. Employees are not required to take all 12 weeks at once. The employee may request a few days or weeks off at a time (referred to as intermittent leave) or continue to work on a part-time basis (reduced leave). Unless written medical justification deems it necessary, the Public Defender is not required to grant intermittent or reduced leave. * * * (4) Employees must provide reasonable notice (30 days if possible) and make an effort to schedule their leave so as not to unduly disrupt agency operations. The Public Defender may request progress reports from the employees regarding leave status. * * * (7) The Public Defender may require certification from a healthcare provider regarding the need for medical leave, as well as certification of an employee's fitness to return to work. From August 1, 2002, through May 16, 2003, Respondent approved 518 hours or 12 weeks and 38 hours of leave without pay. During the hearing, Petitioner acknowledged that she received the leave without pay. Her testimony that she was not familiar with the above-referenced policies is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Florida, Leon County, Florida. S SUZANNE F. HOOD 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 23rd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Herman D. Laramore, Esquire Public Defender, Fourteenth Circuit Jackson County Courthouse Post Office Box 636 Marianna, Florida 32447 Christian C. Griggs 130 25th Avenue Apalachicola, Florida 32320
The Issue Whether, under the facts and circumstances of this case, petitioner is deemed to have abandoned his position and resigned from the Career Service.
Findings Of Fact Mr. Willie L. Claridy was an employee of the Department of Transportation for 2 or 3 years and was under the immediate supervision of Daniel E. Skinner at the Sarasota Maintenance Office for approximately a year, including March and early April of 1984. On or about Monday, March 26, 1984, while in the outside shop area at his place of employment, Mr. Claridy mentioned taking a vacation to some fellow employees. He said he was going home to a family reunion. The employees moved into the office area, and the conversation continued. Mr. Skinner, who was petitioner's supervisor, Mr. Campbell, Mr. Claridy, and two others were present in the office. During the conversation in the office, Mr. Claridy stated that he was going to take a vacation; however, he never specifically asked for leave, he was not told that he could have leave, and no specific dates were mentioned. 1/ Although Mr. Skinner could not recall the discussion regarding Mr. Claridy's vacation, he admitted that it could have taken place. However, Mr. Claridy never signed a leave slip requesting leave, and Mr. Skinner never signed a leave slip approving leave. Nevertheless, Mr. Claridy did not report for work on April 2nd, 3rd, 4th, or 5th, 1984, and did not contact his office during that time. The Employee Handbook, received by Mr. Claridy on April 20, 1983, clearly states that an employee must obtain the approval of his supervisor before taking leave. Neither the handbook nor the memorandum to employees of January 1982 states that prior approval must be in writing, although the language in the handbook implies that it should be. However, Mr. Claridy was fully aware of the procedure that he needed to follow in requesting leave. On two earlier occasions when Mr. Claridy had wanted time off he had submitted leave slips and received approval from his supervisor prior to his absences from work. Mr. Claridy's stated reason for not submitting a leave slip in this case in advance of his absence is neither accurate nor credible. He testified that he thought he might get called back to work during the course of his leave time due to a shortage of mechanics, and, if this occurred and he had submitted the leave slip, he would not have gotten paid for his time. 2/ However, the evidence at the hearing indicated that Mr. Claridy did not plan to be and was not in town during his absence from work, and therefore could not have been called into work. 3/ Further, Mr. Claridy stated that they might need him because they were short of help but also testified that "[w]e were caught up with all our work." Finally Mr. Claridy's return to work during a period of time when he was on authorized leave would not have adversely affected his pay or his annual leave time, and Mr. Claridy would have discovered this had he made any inquiries. Mr. Skinner did not approve Mr. Claridy's leave time nor did he inform Mr. Claridy that he could submit a leave slip after his vacation. Consequently Mr. Claridy's absence from work on April 2nd, 3rd, 4th, and 5th was unauthorized. Mr. Claridy had received the Employee Handbook and the memorandum of January 1982 which informed him that three consecutive absences without authorized leave would result in termination of employment. Mr. Claridy was properly informed by certified letter dated April 5, 1984, that having failed to report for work during the period in question and having failed to take action to notify his supervisor of the reasons for the absence he was deemed to have abandoned his position and resigned from the Career Service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Department of Transportation in deeming the petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. DONE and ENTERED this 18th day of December, 1985, in Tallahassee, Leon County Florida. DIANE A. GRUBBS 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 18th day of December, 1985.
