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 July 8, 1986, Respondent, Department of Health and Rehabilitative Services, sent Petitioner, Shirley Johnson, a letter to confirm her separation from employment as a Human Services Worker II in Pierce Cottage, Unit II, Facility IV, at the Gulf Coast Center in Ft. Myers. At the time, Johnson was a permanent employee of HRS. Her job at Pierce Cottage was to help care for 29 severely profoundly mentally retarded persons. On or about May 6, 1986, HRS' Gulf Coast Center instituted new policies for applying for authorization for leave from work. /1 No longer would Petitioner and fellow employees be required to notify their immediate supervisor, Twila Bevins, of their absence or tardiness. Instead, the employees are responsible only to notify the group shift supervisor on duty at Pierce Cottage. The employee only advises the group shift supervisor of the employee's intent to apply for authorization for leave and the amount and time the leave would be taken. The group shift supervisor does not approve leave. Authorization for leave must be obtained directly from the immediate supervisor, Twila Bevins, by explaining the reasons for the leave request which would entitle the employee to authorization for leave. Application for authorization for leave can be made either before or after the group shift supervisor is notified. However, no leave can be authorized for an employee who did not personally give notification of anticipated absence unless the employee is incapacitated. Petitioner is a mother of six. She also cares for her father, who has heart disease, and for her mother, who is overweight and has limited mobility. After a separation she has been reconciled with her husband, who, after being out of work, is now employed and contributes to the support of the family. On July 2, 1986, Petitioner and her immediate supervisor agreed that Petitioner would have July 3 and 4 off, but would work from 6:30 A.M. to 2:30 P.M. on July 5. Petitioner also was scheduled to work on July 6, 7 and 8, 1986. During the early morning hours of Saturday, July 5, between approximately 1:00 A.M. and 4:30 A.M., Petitioner's father had a heart attack and Petitioner and her husband went with him to the hospital and stayed there while he was being cared for. When they returned home at approximately 4:30 A.M., they were told by Petitioner's mother that Petitioner's brother was in jail in Ocala and that she was very concerned about her son. At her mother's request, Petitioner and her husband agreed to drive to Ocala to bail her brother out of jail. When they arrived in Ocala, Petitioner's husband, who was driving when they arrived in Ocala, was arrested for driving with a license under suspension and was himself put in jail. Petitioner herself then had to drive back to Ft. Myers to get money to bail her husband out of jail, drive back to Ocala to bail him out, and drive her husband back to Ft. Myers, a drive of a total of approximately 600 miles. Petitioner did not work and did not call in to work on Saturday, July 5. She was absent without authorized leave. On Sunday, July 6, 1986, Petitioner called into work at 6:30 A.M. to explain to the shift supervisor why she had been absent the previous day, and to notify him that she would not be in until approximately 10:00 A.M. However, tired from her ordeal the previous day and developing a severe headache, Petitioner did not work on Sunday, July 6. She called in later in the morning and spoke to one of the women working in Pierce Cottage but did not speak to the group shift supervisor. She was again absent without authorized leave. On the following morning, Monday, July 7, 1986, Petitioner called in at 6:25 A.M. to tell the group shift supervisor she would be late getting in to work. However, her headache got worse, and the pain traveled down to her neck and down one side of her body. The pain was so severe that she was crying uncontrollably. Although she still told her husband that she wanted to go to work to avoid any disciplinary problems, he talked her into letting him telephone Pierce Cottage to say that she would not be able to work on July 7. At approximately 6:45 A.M., her husband telephoned the group shift supervisor and told him that Petitioner would not be at work at all that day because of her physical condition. On Tuesday, July 8, 1986, Petitioner still was in approximately the same physical condition. At approximately 7:00 A.M., her husband telephoned the group shift supervisor at Pierce Cottage, reported her physical condition, and reported that Petitioner would not be in to work on July 8. Petitioner's husband also reported that Petitioner would probably have to see a doctor that day. Petitioner did indeed go to the Lee County Health Department on July 8, 1986, to be seen for her physical condition. Petitioner went to the Lee County Health Department because she and her husband could not afford to pay a private doctor. When Petitioner arrived at the Health Department at approximately 2:00 P.M., there was no doctor available to see her. She left at approximately 3:00 P.M. with a note confirming the she had been at the Health Department between 2:00 and 3:00 P.M., and that she needed a follow-up appointment. Although Petitioner still was suffering from a severe headache on Wednesday, July 9, 1986, she went to work, turning in her note from the Health Department. However, upon arriving, she was advised of HRS' July 8 letter confirming her separation from her employment. After reciting the grounds upon which HRS had taken the position that Petitioner should be deemed to have abandoned her position, the letter stated: "In the event it was not your intention to resign from employment, you are instructed to immediately contact me and provide a reasonable and acceptable explanation for your unauthorized absence from your employment." Petitioner was absent without authorized leave on July 5 and 6, 1986. Petitioner was not incapacitated from telephoning her group shift supervisor on July 7 and July 8, 1986. However, under the circumstances, it was reasonable for her to have her husband telephone for her. She did not intend to abandon her position. As of July 2, 1986, Petitioner had 27 hours of annual leave and 8 hours of compensatory time in her accumulative leave records and available for use July 5 - 8, 1986. She also would earn an additional 5 hours of annual leave and 4 hours of sick leave by July 10, 1986. This would have been enough to cover her absences and permit her to be paid during her absences if authorized and approved.
Recommendation Based upon the foregoing Findings of Fact' and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order granting the petition in this case and ruling that the circumstances of this case do not constitute an abandonment of Petitioner's position. RECOMMENDED this 3rd day of November, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1986.
The Issue Whether Michael J. Rodgers abandoned his position and resigned from the career service within the contemplation of Rule 22A-7.010(2), Florida Administrative Code?
Findings Of Fact V. G. "Jerry" Collins, a DOT maintenance engineer for 14 years, was Michael Rodgers' supervisor in June of 1987, when DOT employed the latter as a highway maintenance technician II at its Perry yard. While recovering from a job-related injury, Mr. Rodgers had been assigned to pump gas there. After Mr. Rodgers began work for DOT, he was furnished a copy of DOT's employee handbook. DOT's Exhibit No. 6. On page 12, the handbook states: If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time. This will allow the Department to effectively schedule your work assignments on a daily basis. When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed. If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work. If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time. If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence. Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given. DOT's Exhibit No. 4. On page 43, the handbook discusses the abandonment rule: JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. DOT's Exhibit No. 3. Mr. Rodgers signed a form acknowledging receipt of the handbook on December 16, 1983. DOT's Exhibit No. 5. At about four on the afternoon of Monday, June 22, 1987, Mr. Collins asked Mr. Rodgers when his next doctor's appointment was. Mr. Rodgers replied, "I need to see him tomorrow." (T. 35) He did not "state that it would be for illness" (T. 53) or specify the reason for the visit. (T. 74) Believing Mr. Rodgers had an appointment to see his doctor the following day, Mr. Collins said, "That's fine, when you come back to work bring a doctor's certificate." (T. 17) But the leave Mr. Collins authorized Mr. Rodgers to take was "not a leave of absence for illness." (T. 53) On Tuesday, June 23, 1987, A DOT employee marked Mr. Rodgers absent for the day on "authorized leave" (T. 18) without pay. Mr. Rodgers, who lives about 60 miles from Perry, travelled to Dr. Hauser's office in Old Town on Tuesday morning "to sit down and talk with him about some information [he] needed," (T. 36-37) concerning an automobile accident's forensic sequelae. He was told to return later that day, because the doctor could not see him immediately. Although he returned at noon, and on four different occasions that afternoon, the doctor gave other patients priority. Mr. Rodgers then telephoned DOT's Perry yard, and "gave the secretary . . . the message that [he] was unable to see the doctor and . . . would still need to be off . . . to attempt to see him again on Wednesday the 24th." (T. 24, 38) When Mr. Collins learned of Mr. Rodgers' conversation with the secretary, he asked William S. Clark to telephone Dr. Hauser's office, at the Tri-County Medical Center. Betty in Dr. Hauser's office told Mr. Clark that, although Mr. Rodgers had in fact visited the office, he had no appointment. On Wednesday morning, DOT's attendance records were marked to reflect that Mr. Rodgers was absent on authorized leave without pay, although Mr. Collins testified that leave never was authorized for that day. (T. 19, 80) Later Wednesday, Mr. Collins, under the impression that Mr. Rodgers "had lied about going to the doctor for a doctor's appointment," (T. 82) ordered that the attendance records for Tuesday and Wednesday be altered to show that Mr. Rodgers' leave was not authorized on those days. (T. 19, 80, 82) On the afternoon of Wednesday the 24th, Mr. Rodgers, who had inquired at the office about Dr. Hauser's availability on two occasions earlier in the day, saw Dr. Hauser, discussed effects of the automobile accident, and made an appointment for the following day to have his back examined. (T. 38) On Thursday, the 25th, he kept the appointment, and obtained a slip of paper attesting the fact. But, in Mr. Collins' view, Mr. Rodgers' employment had ended before he saw the doctor that day: "He was considered to have abandoned his position by 9:00 a.m. Thursday morning since he had not called in [after Tuesday afternoon.]" (T. 79) When Mr. Rodgers returned to work on Friday, June 26, 1987, Mr. Collins read, then returned, the note from the doctor, informed Mr. Rodgers of the changes in the attendance records, and advised him that his employment had terminated.
Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate Michael J. Rodgers as a highway maintenance technician II at its Perry yard, with back pay since June 26, 1987. DONE and ENTERED this 27th day of May, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 27th day of May, 1988. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Aaron A. Green, Esquire P. O. Box 1265 Gainesville, Florida 32602 Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At all times material, Petitioner was employed by the Department of Corrections as a full-time career service employee. On July 13, 1984, he was ranked as a Correctional Officer I at Florida State Prison (FSP). On March 2, 1990, Petitioner had been placed on workers' compensation due to a back injury. On Thursday, April 5, 1990, Dr. W. David Sikes of the Bradford Chiropractic Center signed a medical release permitting Petitioner to return to light duty on Monday, April 9, 1990. Dr. Sikes was apparently the authorized treating physician to whom the agency had currently obligated itself pursuant to Chapter 440 F.S. [The Florida Workers' Compensation Act]. A previous physician had released Petitioner for full-duty work on April 3, 1990. Petitioner was present in the office of Personnel Manager Marion Bronson on Friday, April 6, 1990. At that time, Mr. Bronson told Petitioner to report for work on the first shift (8:00 a.m. to 5:00 p.m.) on Monday, April 9, 1990. This meant Petitioner would be doing mail room duty during the day instead of his regular duties on his regular shift of midnight to 8:00 a.m. Petitioner told Mr. Bronson he could not work the first shift due to his needing to be home to take of his invalid wife. To this, Mr. Bronson replied that the first shift was the only light duty available. On Friday, April 6, 1990 Petitioner did not refuse to come in to work the first shift on Monday, April 9, and he did not tell Mr. Bronson that he was already signed out on annual leave for that date. Nonetheless, Mr. Bronson was left with the impression at the end of their meeting that Petitioner would not come back to light-duty work on Monday. Petitioner did not report for work on the first shift on April 9, 10, or 11, 1990 (Monday, Tuesday and Wednesday). On Wednesday, April 11, 1990, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: You have been carried in unauthorized leave without pay status since April 9, 1990. You were also carried on unauthorized leave without pay on April 3, 1990. You are hereby instructed to return to duty at 8:00 a.m. the day after you receive this letter. If you do not return to duty on that date it will be deemed that you have abandoned your position at Florida State Prison and you will be dismissed. In the past, the FSP personnel office usually made further efforts to contact missing employees after such a letter had been sent, but no such attempts were made in this instance. Normally, FSP gives employees an opportunity to call in and rectify absentee problems but deems it abandonment if the employee does not respond. At no time subsequent to April 6, 1990 did Petitioner contact anyone at FSP regarding his absence. Petitioner did not actually receive the April 11 letter until Friday, April 13. Petitioner did not report for work on Saturday, April 14, Sunday, April 15, or Monday, April 16. Saturday would have been a regular workday for Petitioner. However, Petitioner's usual days off were Sunday and Monday, and nothing had been said by Mr. Bronson about altering Petitioner's workdays. On Monday, April 16, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: This is to inform you that in accordance with Section 22A-7.010(2), F.A.C., you have been deemed to have abandoned your position as Correctional Officer I and resigned from the Career Service System effective April 14, 1990. A copy of Section 22A-7.010(2) is enclosed for your information. You have been absent from duty for at least three consecutive workdays without authorized leave as follows: April 10, 11, and 12, 1990. Please be advised that you have been dropped from the payroll effective the close of business April 14, 1990. Unbeknownst to Mr. Bronson, Petitioner had exercised preapproved annual leave for the period of April 10-14, 1990. None of Petitioner's superiors advised Mr. Bronson of this fact. There was no notation to this effect in Petitioner's personnel file in Mr. Bronson's office. It was Mr. Bronson's testimony that it was better personnel management and he would have preferred to have Petitioner drawing annual leave during this period than to be paying him full pay for makeshift light duty. If Petitioner had requested annual leave on April 6, 1990, Mr. Bronson would have granted it. As of April 14, 1990, Petitioner had "banked" 119.75 hours of annual leave time which would have been sufficient to cover his April 10-14, 1990 vacation or "no show" days. Additionally, he also had available 26.5 hours of sick leave but this sick leave was subject to certain deductions and adjustments which had allowed the agency to keep Petitioner on at full pay the previous week while technically he was only eligible for a reduced amount based on workers' compensation. In accord with standard FSP policy, Petitioner had previously submitted an annual leave request form on October 16, 1989 to request leave for the week of April 10 through April 14, 1990. This form had been approved by his immediate superior, who at that time was his shift supervisor, Officer Gaskin. Officer Gaskin was the correct superior to make such approval. Mr. Bronson has nothing to do with the approval of leave under such circumstances. Harry Tison, who became Petitioner's shift supervisor in April 1990 while Petitioner was still out on workers' compensation leave, was not aware of Petitioner's preapproved annual leave until Mr. Bronson's office began making inquiries after the April 16 letter, but at that time, Tison was able to refer to a leave calendar posted in his area which showed that Petitioner was expected to be out on annual leave on those days. From that information, Officer Tison, by reason of his familiarity with the FSP system and hierarchy, could infer that Petitioner's leave had been approved by FSP's highest command figure, "the Colonel." Some witnesses alluded to FSP policy that even preapproved annual leave requests constituted only tentative approval unless the employee checked with his supervisor a week before actually exercising his leave so as to be sure that the preapproved leave had not been revoked due to an employee crunch, but there is no such rule or printed policy of the Department of Corrections or FSP, and the evidence is insufficient to establish such a vague policy as uniform or binding on Petitioner. Also, in this instance, the week before, Petitioner was away from work most of that week on workers' compensation disability, and there is no evidence of any employee crunch which would have altered the prior annual leave approval.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order finding that Petitioner has not abandoned his position and returning him to the appropriate position with back pay and emoluments, subject to any appropriate setoffs under the Workers' Compensation Act and any mitigation from other employment. DONE and ENTERED this 19th day of August, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 19th day of August, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner has filed only a "Final Argument" and that is essentially legal argument and proposed conclusions of law as opposed to proposed findings of fact which are entitled to a ruling pursuant to Section 120.59(2) F.S. Moreover, the format does not lend itself to intelligible rulings since no sentence is numbered. Respondent's PFOF: 1-6 Accepted. Accepted except for the last sentence, which does not comport with the testimony heard. Accepted. Rejected in FOF 13, which reflects the greater weight of the credible evidence. Accepted but subordinate. - 15 Accepted. COPIES FURNISHED: Perri M. King Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Rodney W. Smith, Esquire Gloria W. Fletcher, Esquire 515 North Main Street, Suite 300 Post Office Box 1208 Gainesville, Florida 32602 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
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
Findings Of Fact From July 1946 until his retirement from the state career service system on June 30, 1983, Petitioner was an employee of the Department of Labor and Employment Security or its predecessor agencies (the Florida Industrial Commission, the Department of Commerce, and the War Manpower Commission), hereinafter collectively referred to as the Department. The Department, at the time of Petitioner's initial employment, established and administered its own leave policies. Subsequently, the Florida Merit System was expanded to cover all state agencies, including the Department, and uniform personnel policies and practices, including the accumulation of annual leave, were established. Effective July 1, 1957 the accumulation of annual leave for employees of the Department, as with employees of all state agencies, was limited to 240 hours. Initially, Merit System leave regulations provided that leave accumulated by employees of agencies with existing leave regulations, such as the Department, would be credited to their accounts as of July 1, 1957, but any accumulated leave in excess of 240 hours would become void after December 31, 1959. At the behest of the Department, the deadline within which excess accumulated leave had to be utilized was extended to December 31, 1961. Essentially employees were afforded four and one-half years within which to utilize their excess accumulated annual leave or forfeit it. Upon his retirement June 30, 1983, Petitioner was paid for, and had computed as part of his Average Final compensation; the annual leave he had accumulated up to a maximum of 240 hours in accordance with Rule 22A-8.10, F.A.C. That rule, or its predecessor, has contained the same 240-hour limitation since December 31, 1961. Petitioner asserts that he had accumulated leave in excess of 240 hours on December 31, 1961. While the evidence does establish Petitioner had excess leave on that date, there was no competent evidence presented from which his actual leave balance could be established. The actual amount of Petitioner's excess leave is not, however, significant since any annual leave he had in excess of 240 hours was void after December 31, 1961. Notwithstanding the voiding of his excess annual leave, Petitioner asserts that his entitlement to such leave still exists because of certain assurances he received from his supervisors. According to Petitioner, he was unable to utilize his excess leave between July 1, 1957 and December 31, 1961, because he was on "special assignments" for the Department which precluded his absence from work. Consequently, Petitioner says, `his supervisors "assured" him that they would see to it that he "got his excess leave." It is worthy of note that the supervisors who purportedly gave such assurances have been dead for over a decade, that there exists no corroborating evidence of Petitioner's assertions, and that at no time during the ensuing 23 years did Petitioner raise any issue concerning, or attempt to use, the leave which had been forfeited. It is further worthy of note that while purportedly assured he would "get his excess leave," Petitioner received no assurance he would be paid for it upon retirement. It is unnecessary to decide whether such assurances were in fact given. The evidence is clear that the supervisors in question had no authority, real or apparent, to bind the State by such assurances. Further, any reliance Petitioner may have placed on such assurances would not have been reasonable, since such assurances were contrary to existing regulations.
The Issue Whether the Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?
Findings Of Fact Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B): JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A). In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987. Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be treated as having abandoned his position with the Department because of his unauthorized absence. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department. The Department received a letter on November 25, 1987, requesting a formal administrative hearing. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of Administration concluding that Kenneth M. Watson abandoned his career service position with the Department. DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 16th day of June, 1989. APPENDIX Case Number 88-0798 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2-3 4. 4-5 5. 6 7. 7 11. 8 13. 9 11-15. 10 16. Hereby accepted. See 17. 13 13. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989. Hereby accepted. 16 18. 17-18 2. 19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-6. 2 7. 3 9. 4 11. 5 12. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16. Hereby accepted. Not supported by the weight of the evidence or irrelevant in this de novo proceeding. Not supported by the weight of the evidence or argument. See 20. Not supported by the weight of the evidence. Hereby accepted. Irrelevant in this de novo proceeding. COPIES FURNISHED: Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Respondent should have been suspended from her position with Petitioner as a school bus aide, and whether Respondent should be dismissed from her position.
Findings Of Fact At all times material to this proceeding, Petitioner, The School Board of Dade County (Board), was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida,1 pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Jamella R. King (King), was employed by the Board as a school bus aide from November 1989 until her suspension in July 1997. The position of school bus aide is governed by the Collective Bargaining Agreement between the American Federation of State, County, and Municipal Employees (AFSCME) and the Board. Since 1993, King's employment history has been characterized by excessive unauthorized absences, tardiness, and a continued disregard for administrative directives. In December 1993, King participated in a conference-for- the-record (CFR) because of her excessive unauthorized absences. Respondent was referred to the Employee Assistance Program (EAP), a confidential, collectively bargained for benefit which assists employees who may be having problems that, while not associated with employment, may be interfering with their performance. King refused to attend the scheduled counseling sessions. In February 1994, King participated in another CFR to discuss her attendance problem. The seriousness of the situation was brought to King's attention, and she was directed to improve her attendance. King was again referred to EAP, but failed to avail herself of these services. On or about January 22, 1996, a Transportation Operations Procedures Reminder (Reminder) was given to King. The Reminder set forth the Board's attendance policies and advised King that she currently had four and a half days of unauthorized leave. On April 30, 1996, another Reminder was given to King, addressing her attendance deficiencies. At that time, King had accumulated the equivalent of at least ten days of unauthorized absences in the 1995/1996 school year. From August 28, 1995, to May 28, 1996, King accumulated the equivalent of 21 days of unauthorized absences. On or about June 10, 1996, a CFR was held with King to review her continued disregard of proper attendance practices. King was again referred to EAP and was advised that she must improve her attendance. King was warned that her failure to improve could result in termination of her employment. King refused to follow this directive and continued to accumulate unauthorized absences. In July 1996, King signed in for work, but failed to go to her assigned route. King was issued a letter of warning for failure to complete her assigned route. King's supervisor directed her to improve her attendance. King failed to improve her attendance. As of October 10, 1996, King had accumulated 36 days of unauthorized absences for the preceding 12 month period. On October 29, 1996, a CFR was held with King concerning her attendance problem. At the CFR King received a reasonable directive from her supervisor to improve her attendance. King failed to follow this directive. In January 1997, King was removed from her assigned placement and placed on sub-status by her supervisor because King had become unreliable at her work site due to her continued unauthorized absences. Sub-status refers to a pool of aides who substitute as needed. From January 4, 1996, to February 10, 1997, King accumulated the equivalent of 47.5 days of unauthorized absences. On February 10, 1997, a CFR was held with King regarding her attendance problems. King was again directed to improve her attendance. From March 4, 1996, to April 15, 1997, King had accumulated the equivalent of 44 days of unauthorized absences. On May 27, 1997, a CFR was held with King regarding her continued attendance problem. King's continual unauthorized absences adversely impacted her work site because her coworkers were compelled to perform King's job duties. King's unauthorized absences also adversely affected the quality of transportation being provided to the students who ride the buses to which bus aides are assigned. These students have special needs that require the presence of an aide who can properly attend to those needs. Without a bus aide, there is the potential that the bus driver will be interrupted and distracted by those students. Additionally, when different bus aides appear on the bus, these students may feel uncertain and nervous, which may also unnecessarily distract the bus driver. The Collective Bargaining Agreement between AFSCME and the Board provides: ARTICLE II -- RECOGNITION * * * Section 3. . . .It is understood and agreed that management possesses the sole right, duty, and responsibility for the operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; . . . * * * ARTICLE V --DEFINITIONS * * * Section 27. Unauthorized Absence -- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accumulated sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there are extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. * * * ARTICLE XI -- DISCIPLINARY ACTION Section 4. Types of Separation Dissolution of the employment relation between a permanent unit member and the Board may occur in any of four distinct types of separation. * * * Excessive Absenteeism/Abandonment of Position -- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. . . . Disciplinary -- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. On July 23, 1997, the Board suspended King and initiated action to dismiss her from employment with the Dade County Public Schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining King's suspension without pay and dismissing her from her position with Petitioner as a school bus aide. DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998.
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of religion and national origin and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Mr. Lalla is Hindu, and his religion is Hinduism. Mr. Lalla was employed in the County’s Enterprise Technology Services Department (ETSD). ETSD provides information technology (IT) services supporting the operations of other departments in the County. ETSD manages and maintains the IT infrastructure, including computer hardware and software, and the County’s electronic communications network. On January 31, 2005, Mr. Lalla was hired as an Operating Systems Programmer (OSP) in the Enterprise Security Office (ESO) of the County’s ETSD. An OSP is an advanced level technical professional, who may have duties in a number of different infrastructure support areas within ETSD. On December 18, 2007, Mr. Lalla received a written reprimand as a result of his failure to report a suspected security breach of the County’s computer security system. The written reprimand was for incompetence or inefficiency in the performance of his duty, negligence or willful misconduct, and conduct unbecoming a County employee. Further, connected to the reprimand, Mr. Lalla was reassigned within the IT infrastructure area to another division, the Data Center Division, at which he had new duties and responsibilities. His new supervisor was Adrienne DiPrima. In an email dated December 17, 2008, from Ms. DiPrima to Mr. Lalla, among other things, Ms. DiPrima welcomed Mr. Lalla, indicating that their group was “hoping for a new person to work with [them] on mainframe security” and acknowledging that he had a very limited background in mainframe security. Further, among other things, she advised him that, because it was “a difficult time of year to get started on anything long-term,” for now, he would be working closely with another employee to handle the “day-to-day RACF administration tasks” so that the employee could “concentrate on the upgrades being done for the new operating system release.” On or about January 15, 2008, Mr. Lalla’s reassignment was effective and that was when Ms. DiPrima first met with him. She was leaving the next day for a vacation. Ms. DiPrima met with Mr. Lalla briefly. During the meeting, among other things, she indicated to him that, during her absence, she wanted him to become familiar with the day-to-day operations and work with the person in the particular area that he (Mr. Lalla) was assigned, with that person also being Mr. Lalla’s mentor. Additionally, they discussed the potential for training Mr. Lalla in his new area and the possibility of the Data Center Division funding the cost for training courses. When Ms. DiPrima returned from vacation, she and Mr. Lalla also reviewed the procedure for requesting leave time. Among other things, she advised him that she does not generally deny leave if coverage for the absent person’s duties and responsibilities is available; but for extended leave, for instance a week or two, advance request/notice and approval were required in order to make sure that a person was available for coverage and to make arrangements for the coverage. For several months, Ms. DiPrima saw nothing in Mr. Lalla’s work performance that suggested any disciplinary issues might arise. Therefore, no disciplinary action was contemplated against him. At no time in the reassignment did anyone suggest or did Mr. Lalla believe that he was going to be subjected to any disciplinary action. However, having gone through the previous disciplinary action, together with learning new responsibilities and duties in what he believed to be a short period of time, Mr. Lalla was feeling pressured. The perceived pressure affected him mentally and physically. On April 3, 2008, Mr. Lalla submitted a leave of absence form to ETSD’s Personnel Officer, Shanda Mazzorana, for an unpaid leave of absence for the period from April 9, 2008, through April 9, 2009. The form contained, among other things, a section for the reason for the request, with one of the reasons being “Personal Reason” and subcategories being “Religious holidays,” “Education not related to the job,” and “Other.” He checked “Personal Reason,” “Education not related to the job,” and “Other.” Also, among other things, the leave of absence form provided two lines for the explanation for the request. Mr. Lalla provided as an explanation for the one-year leave of absence that the request was for “Religious and spiritual pursuits of Buddhism at overseas Monastery.” Mr. Lalla did not attach any documents to his request. Ms. Mazzorana asked Mr. Lalla to further explain why he wanted the unpaid leave. He informed her that he was seeking leave to study Buddhism. She requested him to provide some written information to supplement his request. In response to Ms. Mazzorana’s request, Mr. Lalla provided a single page informational sheet about the Buddhist Monastery that he had obtained from his mother. She attached the informational sheet to his request and forwarded the entire packet to the Director and Chief Information Officer, Donald Fleming, for his review and decision. Buddhism and Hinduism are interrelated. Mr. Lalla believed that the religion of Buddhism provided him a remedy to deal with the mental pressures that he was experiencing at work, instead of seeking medical or psychological assistance either privately or through his employer, the County. Nowhere in his request did Mr. Lalla express this reasoning for his request. Mr. Lalla’s religion of Hinduism did not require him to study Buddhism at a monastery for a year. Ms. DiPrima was unaware that Mr. Lalla wanted or had requested an extended leave of absence. Before making a final decision, Mr. Fleming inquired of Ms. Mazzorana whether any prior employees had requested an extended leave of absence that was non-health or non-medical related. Ms. Mazzorana provided two precedents that had occurred over a 25-year period. One situation involved a full- time employee who requested a leave of absence for six months in order to obtain an advanced degree, a Ph.D. The request was denied. Another situation involved a probationary employee who requested a six-week leave of absence to attend a religious retreat. A probationary employee did not have the right to request a leave of absence, and, as a result, his request was also denied. The County’s Leave Code, Section 8, Leave of Absence is applicable to the instant case. Section 08.01.01, as to a leave of absence generally, provides, among other things, that “A leave of absence is an approved absence without pay for a maximum period of one year.” No dispute exists that Mr. Lalla was eligible for a leave of absence as a permanent employee pursuant to Section 08.02.01. Also, Section 08.03.01 sets forth the reasons that a leave of absence may be granted, i.e., medical reasons, job- related reasons, personal reasons, and military, and provides in pertinent part: A leave of absence may be granted for the following reasons: Medical Reasons * * * Job-related Reasons Education related to the job . . . To serve as a full-time representative of an organization composed entirely of County employees To accept an exempt position For other job-related reasons in the best interest of the County service . . . Personal Reasons Education not related to the job . . . Dependent care for a child, spouse, parent or other dependent for federal income tax purposes who is physically or mentally incapable or caring for himself . . . For other personal reasons in the best interest of the County service . . . Military . . . . Additionally, Section 08.04.00 sets forth the application procedure for a leave of absence and provides in pertinent part: 08.04.01 Employees seeking a leave of absence must make a written request to their department director . . . * * * 08.04.03 The department director may request any additional information supporting the request for the leave of absence . . . 08.04.04 The department director may approve or deny requests based on the facts of each case. Approval or denial by the department director must be applied consistently and on the same terms within categories a, c and d of Leave of Absence (Section 08.03.01) although the terms for each separate category may be different. . . 08.04.05 Approval may be for the full period requested by the employee or any portion of such period. Further, Section 08.05.00 sets forth the benefits period for a leave of absence and provides in pertinent part: 08.05.01 A leave of absence may be granted for a maximum period of one year . . . and a minimum period of one pay period. Mr. Fleming considered the staff situation at the County. The County was in a hiring freeze and had lost positions. Mr. Fleming also considered the staff situation at the Data Center Division. A review by him showed that the Data Center Division was understaffed. Mr. Fleming was unable to determine how he would be able to burden the staff with the additional work, if Mr. Lalla’s request was granted, and get the work completed. Additionally, Mr. Fleming considered Mr. Lalla’s request as an academic request, with a religious course of study. Taking into consideration the totality of the circumstances, as to the staff situation at the County and, in particular, at the Data Center Division, the inability to effectively and efficiently re-assign Mr. Lalla’s duties and responsibilities, during his one-year leave of absence, and the precedent of requests for extended leave of absence, Mr. Fleming determined that there was no reasonable basis to grant Mr. Lalla’s request. On April 7, 2008, Mr. Fleming denied Mr. Lalla’s request. Even if Mr. Lalla’s request were considered a religious request, the result would have been the same. Based on the same reasoning, Mr. Fleming would have denied a religious request. Mr. Lalla would have agreed to a shorter period of time as an accommodation to what he (Mr. Lalla) was requesting. However, neither Mr. Fleming nor Mr. Lalla suggested an accommodation of a shorter period of time for the leave of absence. Additionally, Mr. Lalla was aware that a Buddhist monastery was located in Homestead, Florida. He did not suggest to Mr. Fleming, as an option, attending the Buddhist monastery in Homestead, instead of in India. No evidence was presented that Mr. Fleming was aware of the monastery in Homestead. Ms. Mazzorana advised Mr. Lalla of the denial of his request for a leave of absence by Mr. Fleming and the reasons for the denial. She provided Mr. Lalla a copy of the completed leave of absence form that was signed by Mr. Fleming. Ms. DiPrima was also advised of the denial of Mr. Lalla’s request for the extended leave of absence. On April 14, 2008, Mr. Lalla requested approval from Ms. DiPrima for a two-week vacation beginning the next day on April 15, 2010. Among other things, he advised her that the union was attempting to get the one-year leave of absence approved; that there were certain things that he wanted to do in preparation for the one-year leave of absence; that the two-week vacation would provide him that preparation time; and that two co-workers were available to and had agreed to perform his duties during his absence. Ms. DiPrima denied Mr. Lalla’s request for the two- week vacation. She pointed out to him that there were assignments that he had not completed and that the request was not submitted sufficiently in advance to make sure that his work duties and assignments were covered. Mr. Lalla decided that he could no longer remain with the County. He decided to resign. Mr. Lalla did not discuss with anyone at ETSD that he was contemplating resigning or his decision to resign. On April 15, 2008, Mr.Lalla sent a memorandum to Human Resources regarding his resignation. He indicated, among other things, that, due to recent workplace circumstances, which “severely impacted [his] mental and spiritual health” and the denial of his request for a leave of absence, he was “forced to tender [his] resignation under duress, effective immediately.” Further, among other things, he set forth the workplace circumstances, which were, in essence, how ETSD handled the suspected security breach in the Security Office and handled him and his fellow employees in the Security Office; and set forth the circumstances of the denial of his request for a leave of absence, which he sought for “Religious and Spiritual pursuits,” attempting “to rebuild and repair [his] damaged mental and spiritual health.” Furthermore, on April 15, 2008, among other things, Mr. Lalla sent an email to Ms. DiPrima, while she was at lunch, indicating that, having reviewed what had occurred over the past 12 months, he was “forced” to resign, effective immediately, “under duress.” Further, he cleared his desk; reformatted his computer; and walked out of ETSD without speaking to anyone. The County’s policy required Mr. Lalla to give at least two weeks notice before resigning if he wanted to resign in good standing. By failing to give at least two-weeks notice, he did not resign in good standing.
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 finding that the County of Miami-Dade, FL ETSD did not commit an unlawful employment practice by discriminating against Delano Lalla on the basis of religion and national origin and retaliated against Delano Lalla in violation of the Florida Civil Rights Act of 1992, as amended. DONE AND ENTERED this 3rd day of June, 2010, 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 3rd day of June, 2010. COPIES FURNISHED: Delano Lalla 8051 Southwest 159th Court Miami, Florida 33193 Lee Kraftchick, Esquire Miami-Dade County Attorney’s Office 111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Barbara Calhoun, Respondent, is a Career Service employee with permanent status. She has been employed by the Petitioner since approximately 1969 and is presently employed in the capacity of a Resident Lab Assistant (RLA). Mary Ellen Weaver, Nursing Director at Sunland Center at District VII, is in charge of the nurses and other staff personnel at the Sunland Center in Orlando. Mrs. Weaver testified that she approved initially the recommendation by Mrs. Calhoun's supervisor that she be suspended for a continued pattern of absenteeism which had been documented by three previous reprimands, the first of which occurred approximately September 16, 1976. The first reprimand was an oral reprimand of September 16, 1976, and was based on an excessive pattern of sick leave in conjunction with days off. The second one occurred on November 29, 1976, and was submitted by a Mrs. Renner, R.N. and the reviewing officer on that reprimand was Mrs. Graham, R.N. III. The third reprimand occurred on February 5, 1977, a written reprimand the basis therein was excessive absenteeism, with the reviewing officers being Mrs. Renner and Mrs. Graham. (See Petitioner's Exhibits Nos. 1, 2 and 3.) Documentary evidence introduced reveals that from February 11, 1976, to June 23, 1977, the Petitioner accumulated approximately 19 days of unscheduled absences with the majority of such absences occurring in conjunction with days off and most of which were leave without pay (LWOP) because during the Respondent's approximately eight year employment tenure, she had accumulated no annual or sick leave. (See Joint Exhibit 1.) Without going into a recitation of all of the numerous days in which the Respondent was absent, the following is illustrative. On February 11, 1977, Respondent called in sick which was also without pay because she had accrued no leave. The following day the Respondent called in sick and again this absence was without pay and unscheduled. On March 6, 1977, Respondent had a friend call to advise that she was sick with the flu and again a message was sent the following day, on March 7, 1977. On March 26 the Respondent called in sick which was before she was off for two days. On April 18 the Respondent again called in ill. On May 2 Respondent requested annual leave, which was granted. On May 3 the Respondent called in sick and obtained permission to use annual leave since there was no more sick leave accrued. On May 12 Respondent called in sick and again there was no annual leave accrued to cover the absence. The following day the Respondent called in sick, which was prior to her weekend off. On June 1, 1977, Respondent called in sick after being off on May 30 and May 31. On June 16, 1977, Respondent was off and used an annual leave day, which was unscheduled and without prior approval. On June 23 Respondent called in sick, which was unscheduled. It was at this juncture that Respondent's supervisor recommended a suspension, which was approved by Mrs. Weaver and ultimately sent to a Mr. Windsor for final approval. The Respondent offered no explanation to explain, refute or otherwise contradict the numerous absences nor did she offer any proof of any kind to establish that she was in fact sick in such a sporadic form which occurred in conjunction with her days off. 1/ In view of the above, the undersigned concludes that there is competent and substantial evidence to support the Petitioner's disciplinary action directed toward the Respondent.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended the personnel action of the Petitioner, Department of Health and Rehabilitative Services, be sustained. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978.
