The Issue The issue in this case is whether Petitioner was subjected to discrimination by retaliation in violation of the Florida Civil Rights Act (FCRA), sections 760.01-760.11, Florida Statutes.1/
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Background Petitioner, Victoria Carter (Petitioner or Ms. Carter), began her employment with AT&T on July 28, 2008, as a Directory Advertising Sales Representative (DASR). As a DASR, it was Ms. Carter’s responsibility to grow advertisement sales to AT&T’s current customer base as well as sell advertising to new customers. Prior to the DASR position, Petitioner's 20-year employment career had been entirely in sales. Petitioner's initial training with AT&T consisted of a three-month program in Atlanta, Georgia, called the University of Excellence. Petitioner successfully completed this training. AT&T holds four advertising sales “campaigns” per year. The objective of each campaign is to sell advertisements and create new business in a specified geographic area. Each campaign has three to four teams, which consist of six to eleven DASRs. Each team is led by an area sales manager (ASM). Following her completion of training in Atlanta, Petitioner went to work in sales campaigns from October 2008, through the summer of 2009. These campaigns focused on advertising sales to customers in the Gainesville, Jacksonville, Jacksonville Beach, and Palatka, Florida, markets. Petitioner was successful as a DASR early on in her career with AT&T. She landed a large account, Emergency Dental, which elevated her into the President’s Club, in recognition of outstanding sales. Petitioner received congratulatory letters from the Southeast Regional Vice President of Sales for AT&T in August 2009, for exceeding her sales objectives on the Jacksonville and Jacksonville Beach campaigns. Also in 2009, Petitioner was awarded a Perfect Customer Quality Award (Silver Ranking) which was signed by several high- ranking AT&T executives, including Regional Sales Manager Matt Currey. Petitioner's Employment Under ASM Morris In November 2009, Petitioner was switched to the Jacksonville campaign, which was led by James "Al" Morris. Mr. Morris selected Petitioner to be on his team because of her successful sales record. Mr. Morris was Petitioner’s direct supervisor from November 2009, until the end of the Jacksonville campaign in June 2010. In November 2009, Mr. Morris advised Petitioner (and the other DASRs) that due to the rollout of new computer software and the attendant training they would not be permitted to go into the field to sell to existing customers until late January 2010. Instead, the team sales reps were only to sell to non-billing (new) accounts from November 2009, through January 2010. From the outset of their relationship, Mr. Morris observed that Petitioner did not want to follow AT&T policies and procedures. Moreover, Petitioner did not demonstrate a willingness to be self-sufficient, or a desire to learn the information systems to effectively do her job. Mr. Morris observed that Ms. Carter wanted other DASRs to do her work for her, including Elliott Hartman. Mr. Hartman, who was on an entirely different team than Petitioner and did not report to Mr. Morris, would on occasion enter Petitioner’s work into the system for her. This was a clear violation of AT&T policy as DASRs were required to process their own paperwork. Consistent with this policy Mr. Morris did not permit any of his team members, much less someone not on his team, to key in information for other DASRs. Accordingly, Mr. Morris instructed Mr. Hartman not to enter in Petitioner’s work for her. In December 2009, Petitioner sought and obtained a restraining order against Terry Hartman, Elliott Hartman's wife. As stated by Petitioner in the Charge of Discrimination she filed with the FCHR/EEOC on December 31, 2009, the restraining order was necessary because: In approximately May 2009, a coworker's wife began stalking me and making delusional and completely false accusations pertaining to my having more than a working relationship with her husband. In late November or early December of 2009, the situation had become so stressful and frightening that I was forced to seek a restraining order against the woman. (Petitioner's Ex. 3) Notwithstanding the above statement, made under penalty of perjury, Petitioner admitted at hearing to having had a sexual relationship with Mr. Hartman that lasted approximately one year. Prior to the issuance of the restraining order Petitioner had informed the AT&T human relations department that she was being stalked by Mrs. Hartman. On the day the restraining order was issued, December 3, 2009, Petitioner also spoke with the General Manager, Matt Currey, and Mr. Morris about the situation with the co-workers wife. Following her conversation with Mr. Morris and Mr. Currey on December 3, 2009, Petitioner perceived that she was suddenly treated very differently by Mr. Morris. For example, during the campaign review held that same day, Mr. Morris "was basically yelling" at Petitioner, and a co-worker was instructed not to assist Petitioner with entering information into the new computer system. According to Petitioner, in the middle of December 2009, Mr. Morris and Mr. Currey also yelled at Petitioner over the telephone. During this communication, she was directed to immediately return to the office for the “YP Connect” training test that she had previously scheduled to take after her Christmas vacation. Petitioner informed them that she could not immediately return to the office because her automobile had a flat tire. In response, Mr. Morris and Mr. Currey directed Petitioner to take a picture of the flat tire to corroborate her story. However, since Petitioner did not have a camera, upon her return to the office she presented a receipt for the tire repair as proof. Petitioner ultimately completed the YP Connect test on January 4, 2010, and received a score of D+. Of the 31 DASR's who had taken the test as of January 4, 2010, 15 (nearly 50%) received scores of D+ or lower. Of the 15 DASRs who received a score of D+ or lower, 11 were males. There is no credible evidence in this record that Petitioner's test was graded in an unfair or discriminatory manner. As part of the Jacksonville campaign, Emergency Dental, the large account that helped put Petitioner in the President’s Club, became one of Ms. Carter’s assigned accounts. According to the testimony of Mr. Morris, which is credible, Petitioner provided Emergency Dental terrible customer service. As a result, the client became very upset with Petitioner because she failed to meet his requests or follow-up with him. Emergency Dental even requested that Ms. Carter not handle their account, and accordingly, Petitioner’s ASM, Mr. Morris, had to service the account. Emergency Dental ultimately received a very large adjustment for Petitioner’s failure to process their paperwork properly and for errors in its ads. Petitioner also had issues using General Manager Overrides (GMOs) as a sales tool. GMOs are discounts on advertising pricing that can only be offered with manager approval, and were to be used sparingly. DASRs are not permitted to offer discounts prior to manager approval. Mr. Morris approved all but two of Petitioner’s GMOs. The first involved Concrete Advantage, wherein Ms. Carter called Mr. Morris to approve a specific discount, which he did. However, when Petitioner arrived back at the office, it became apparent that Ms. Carter had offered Concrete Advantage a larger, unapproved discount, which was outside of Mr. Morris's approval authority. The second GMO denial occurred with Anderson Insurance, wherein Petitioner took it upon herself to offer an 81 percent discount off of the display ad and a total discount of 65 percent. Again, this discount was beyond Mr. Morris’ authority and required vice president approval before a DASR could offer it. However, Petitioner nonetheless offered the discounts before receiving the necessary approval. Notwithstanding Petitioner's unauthorized discount offers, both of these GMOs were eventually approved by Mr. Currey in order to maintain good client relations. Petitioner's Charge of Discrimination dated December 31, 2009, was mailed to AT&T on January 14, 2010. In her Charge, Petitioner alleged that she was treated differently after telling Mr. Morris about the restraining order against Ms. Hartman. Specifically, Petitioner alleged: (1) Mr. Morris would not allow Mr. Hartman to assist with closing accounts; (2) her requested GMOs were not approved; and (3) Mr. Morris requested that Carter return to the office to take the YP Connect test, but Petitioner had a flat tire and Mr. Morris asked that she take a picture of the flat tire. All three of these allegations relate to incidents that occurred prior to December 31, 2009. On January 7, 2010, Petitioner lodged an internal complaint with AT&T’s ethics hot line. In the complaint Petitioner alleged that she was being “subjected to constant criticism, micro-management and intense scrutiny of sales contracts by managers.” Petitioner also alleged that she was being treated differently from her male co-workers, including that she was “the only person required to take the YP Connect test immediately, even though there were other team members, including Premise Representative Scott Trimbull, and Elliot Hartman, who had not yet completed the test.”2/ Mr. Morris and Mr. Currey were specifically named in Petitioner’s internal ethics complaint. Notably, this complaint also included the statement that Petitioner was being stalked by Mrs. Hartman, who was making “delusional statements” about a perceived relationship between Petitioner and Mr. Hartman. The internal complaint was investigated by AT&T and closed as unsubstantiated. The report found that the managers charged in the complaint (Morris and Currey) were “performing job responsibilities ensuring policies and procedures are not being violated.” (Petitioner's Ex. 2) According to Petitioner, following her FCHR/EEOC charge and her internal ethics complaint, Petitioner’s work continued to be micromanaged and scrutinized. In addition, Mr. Morris would speak with Petitioner in a very hostile tone of voice, and she would sometimes walk out of his office shaking, distraught and taken aback by his behavior. According to Petitioner, Mr. Morris’ demeanor was very angry and “very, very hostile, talking down to [Petitioner].” On one occasion Diane Smith, who worked with Petitioner and Mr. Morris in the same office, observed Mr. Morris calling Petitioner into his office and being vocal and condescending with her. Ms. Smith also observed that Petitioner exited the office and appeared “pretty shaken up.” On February 19, 2010, Petitioner filed a grievance with her union, Communications Workers of America (CWA) Local 3106, alleging she was being subjected to a hostile work environment. No specific factual allegations were included with the grievance, just that Petitioner was being subjected to “discrimination, harassment and inequity of treatment.” However, at hearing Petitioner testified that she filed the grievance because she disagreed with Mr. Morris’ decision not to approve a GMO for two accounts, Concrete Advantage and Anderson Insurance. The grievance was later retracted by Petitioner “per agreement between Matt Currey, GM and Elliott Hartman, CWA.” On May 12, 2010, Petitioner filed another grievance with her union because she had received a written warning for failing to follow Respondent's “reporting out” policy. Petitioner filed a final grievance to receive pay for attending a prior grievance meeting. In response to this grievance Mr. Miller agreed to pay Petitioner and all other affected DASRs for their time at the meeting. After the conclusion of the Jacksonville campaign in June 2010, Petitioner was not supervised by Mr. Morris again. Petitioner's Employment Under ASM Amy Topnick Following the Jacksonville campaign Petitioner’s next assignment was the Palatka campaign. ASM Amy Topnick selected Petitioner for the Palatka campaign because Petitioner was a former peer and friend. Ms. Topnick and Petitioner started as DASRs at approximately the same time in 2008. Ms. Topnick did not speak with Mr. Morris about Petitioner before selecting her for the campaign, and Ms. Topnick was unaware of Petitioner’s December 31, 2009, Charge of Discrimination. After the Palatka campaign began, Ms. Topnick spoke with Mr. Morris about her team's composition, including Petitioner. Mr. Morris told Ms. Topnick that Petitioner had struggled in her position during the Jacksonville campaign and needed to be monitored for accuracy. Following this conversation with Mr. Morris, Ms. Topnick explained to Petitioner that this campaign would be Petitioner’s chance to “redeem herself” from her past problems with the computer system and with her sales. The Palatka campaign lasted from June 18, 2010, until August 3, 2010. According to Ms. Topnick's testimony, which is credible, Petitioner’s performance during the Palatka campaign was “dismal, at best.” Specifically, Petitioner did not handle her accounts; she did not keep track with the pacing of her accounts; and she did not follow-up with her clients. In addition, Ms. Topnick discovered that Petitioner did not know the pricing plan; was unable to maneuver through Respondent’s computer applications in order to perform her job; failed to prepare for her accounts; failed to set appointments on a timely basis; and failed to properly answer customer queries. As a result of these serious shortcomings, Ms. Topnick had to handle a majority of Petitioner’s accounts. Although Petitioner received the credit for her accounts during the Palatka campaign, Ms. Topnick credibly testified that she, not Ms. Carter, actually handled the accounts. In August 2010, Albert Miller replaced Mr. Currey as Petitioner’s General Manager. Petitioner does not allege that Mr. Miller discriminated or retaliated against her. Following the Palatka campaign, Petitioner worked on the Gainesville campaign and continued to report to Ms. Topnick. The Gainesville campaign lasted until September 2010. In September 2010, Ms. Topnick had issues with Petitioner calling out without following the proper procedures. Consistent with AT&T procedure, Ms. Topnick advised the Human Relations department of the problem she was having with Petitioner not complying with company procedure. In response, Petitioner claimed she was never told of the policy. No discipline was imposed on Petitioner as a result of this incident. Ms. Topnick did not treat Petitioner differently than anyone else on her team. Ms. Topnick simply expected Ms. Carter to follow company procedures. Petitioner did not file an ethics complaint against Ms. Topnick during the time Ms. Topnick supervised her. During the Palatka and Gainesville campaigns, Ms. Topnick was not aware that Petitioner had filed a Charge of Discrimination against Respondent. Furthermore, Ms. Topnick was unaware that Petitioner had filed several grievances involving Mr. Currey and Mr. Morris. Ms. Topnick credibly testified that no one, including Mr. Morris, Mr. Currey, or Mr. Miller ever suggested to her that she should retaliate against Petitioner in any way. The credible evidence of record does not support a finding that Petitioner was targeted for retaliation, or that she was otherwise discriminated against. There is no credible evidence that Petitioner received unfavorable treatment based upon her gender or any other prohibited basis, or that other employees received more favorable treatment. To the contrary, the evidence established that Petitioner's behavior and poor work performance merited the sometimes harsh and directly critical treatment and intense scrutiny she received from her managers. Petitioner’s Leave of Absence and Failure to Return to Work. Beginning in May 2010, Petitioner developed health issues that progressively worsened. Specifically, Petitioner experienced migraine headaches and backaches that Petitioner attributed to stress at work. In an attempt to address these health issues, Petitioner sought counseling through Respondent’s Employee Assistance Program. Petitioner's last day at work was October 6, 2010. Due to the health problems she was experiencing, Petitioner was placed on short-term disability effective October 8, 2010. On January 7, 2011, Petitioner filed a second complaint with the AT&T Human Relations Department, this time alleging that Ms. Topnick had made inappropriate comments about Carter’s disability leave. At hearing, Ms. Topnick credibly denied ever making such comments. Petitioner’s short-term disability leave request was denied in January 2011, and Petitioner was given notice that she would have to reapply. On January 26, 2011, Petitioner filed her application for short-term disability appeal leave of absence, and on February 11, 2011, Petitioner was granted a 250-day administrative leave of absence, also known as short-term disability appeal leave. On July 28, 2011, Stacy Korzekwa, leave of absence administrator, extended Carter’s short-term disability leave of absence through September 15, 2011. See Respondent’s Ex. 27. In an email to Carter, Ms. Korzeka explained: Vickie: Per our conversation this afternoon, I have extended the STD Appeal Leave of Absence (LOA) through 9/15/11 to allow additional time for the decision of your 1st appeal with the AT&T Integrated Disability Service Center (IDSC). As I explained, this leave will continue to protect your absence while you go through the appeal process. The leave has a maximum duration of 450 days. I typically grant 250 days to allow the employee to complete their 1st appeal. The additional 200 days is granted when the employee requests an extension of the LOA while they complete the 2nd appeal (if necessary). Since the IDSC may not be able to render a decision on the 1st appeal for another 45 days, I’m extending the end date of your leave from 8/30/11 to 9/15/11 (approval email attached). Please note that the end date is just an estimate. You have a responsibility to mail a new LOA Application to me once the appeal decision is made. Once the IDSC renders a decision about your disability claim, they will mail you a letter regarding the decision. If any portion of your disability benefit is still denied, they will include another LOA application titled Exhibit A2: Application for Extension of STD Appeal Leave of Absence. You have 20 days from the date of that letter to mail me the new LOA Application if you want to remain on the STD Appeal LOA while you complete your 2nd appeal. I would process the application and give you the remaining balance (up to 450 days) for the leave. Please let me know if you have any questions. Stacy Korzekwa Leaves of Absence Administrator At hearing, Petitioner acknowledged that she received this email. Petitioner also acknowledged that she missed the deadline to file an application for a second leave of absence. Despite knowing she had missed the deadline, Petitioner nonetheless applied for a short-term disability leave of absence on September 7, 2011, stating: “I would like to request an extension on my Leave of Absence from AT&T at this time. I understand I have missed the deadline of 20 days from 8/5/11 when my attorney and I received the Exhibit A2 notice.” On September 16, 2011, Ms. Korzekwa sent Petitioner an email notifying her of the denial of her leave of absence appeal stating: Victoria: Attached is the determination email for the request for an extension of the STD Appeal LOA. One of the requirements for the leave is that the LOA application must be postmarked within 20 days of the denial letter date at the top of the form. Your form was postmarked effective 9/07/2011 and the denial uphold letter date was 8/05/2011. Since Petitioner missed the leave of absence extension request deadline, General Manager Miller notified Petitioner on September 14, 2011, by letter that she would need to return to work not later than September 19, 2011, or face “disciplinary action up to and including termination.” Despite the opportunity to return to work, Petitioner informed Mr. Miller that she was not able to return to work full-time. Inasmuch as Petitioner did not return to work, Respondent terminated Petitioner’s employment on September 19, 2011. As of the date of the hearing, Petitioner had not been employed since being terminated by AT&T. Petitioner explained that she had not yet been released by her doctors to return to work full-time, although her doctors “may have released me to work on a part-time basis.” Mr. Morris never had any discussions with Ms. Korzekwa about Petitioner or her Charge of Discrimination. One day after her termination from Respondent, on September 20, 2011, Petitioner filed the Charge of Discrimination at issue herein. The only allegation in this Charge was retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Victoria Carter. DONE AND ENTERED this 13th day of February, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 13th day of February, 2013.
The Issue The issue for determination is whether the Western and Southern Financial Group (Respondent), violated the Florida Civil Rights Act of 1992 (FCRA) in terminating employment of Stephen Howe (Petitioner) without reasonable accommodation. § 760.10, Fla. Stat.
Findings Of Fact Respondent is the Western and Southern Life Insurance Company, a subsidiary of Cincinnati-based Western & Southern Financial Group Inc. Respondent is a home service company that requires sales representatives to call on policy holders on a regular basis for sales and service. The district sales office in Pensacola, Florida, is one of 181 sales offices headed by a district sales manager. Jim Swaim served as the district sales manager for Respondent’s Pensacola Office from August 5, 2002 until November 3, 2003. Petitioner Stephen Howe became a Western and Southern sales representative on January 25, 1993, compensated pursuant to a Sales Representative Agreement of that same date, inclusive of the incorporated Sales Representative Schedule of Commissions, setting forth his compensation schedule and job duties. He intermittently served as a sales manager, but voluntarily became a sales representative pursuant to a Sales Representative Agreement dated June 28, 1999. He remained a sales representative until his termination on February 3, 2003. Petitioner was admitted to the hospital and therefore absent from work beginning August 28, 2002, due to an unrelenting headache and elevated blood pressure. The conditions cited by Petitioner's physician were sleep apnea and pheochromocytoma (pheo), which is a tumor on the adrenal gland that causes excess adrenaline production. Treatment for pheo usually takes four to five weeks, and is conducted on an outpatient basis. Petitioner’s disability was documented in September 2002, by Dr. Shawbilz, a neurologist, who reported at that time to Respondent personnel and described Petitioner’s dizziness, syncope and headaches. It was noted that Petitioner could not drive at that time due to obstructive sleep apnea, syncope and headache. Petitioner's family doctor, Dr. Mayeaux, prepared a report to Respondent on October, 2002, defining Petitioner's condition as serious and “requiring a period of incapacity from work and subsequent treatment”. Petitioner’s condition included high blood pressure, syncope, tremor, diaphoresis and palpitations. On October 2 and 8, 2002, Dr. Mayeaux sent a letter to Lori Mitchell, a registered nurse and the head of the Benefits Department of Respondent, outlining Petitioner's severe uncontrolled hypertension and a rare debilitating adrenal tumor. The doctor did not feel Petitioner should be working at that time. Later, in further correspondence dated October 28, 2002, Dr. Mayeaux opined Petitioner should not operate a motor vehicle at that time. On November 18, 2002, Dr. Mayeaux forwarded another letter to Respondent's benefit department outlining additional concerns about Petitioner’s syncope, chest pain, palpitations, diaphoresis, and disability to perform meaningful work or drive. On December 19, 2002, Dr. Mayeaux forwarded another letter to Respondent noting the now determined severe sleep apnea of Petitioner as a basis for daytime somnolence and drop attack/syncope. He again opined that Petitioner needed surgical relief from ear, nose and throat (ENT) issues to address sleep apnea prior to return to work. Respondent initially denied insurance for the surgery to address these issues while also denying Petitioner’s disability insurance claim. On December 30, 2002, Dr. Mayeaux again wrote to Lori Mitchell and noted Petitioner’s additional adrenal gland tumor. He opined, "[Petitioner] may not work until these problems have been satisfactorily resolved." On January 23, 2003, Mayeaux again wrote to Respondent’s Benefits Department continuing his disability opinions and noting, "aggressive surgical evaluation and intervention is underway at this time." Petitioner’s blood pressure continued to be labile and uncontrollable, but Mayeaux hoped to control this with surgery for Petitioner’s tumor. Sleep apnea, another of Petitioner’s disabilities, exists when a sleeping person experiences episodes where the individual is without breath. Petitioner did not respond well to the non-surgical treatment for this disorder, in which a machine is used to force air into the sleeping person’s breathing passages. The machine is called a “C-PAP”. Such treatment was prescribed for Petitioner without the best of success. Mayeaux hoped future surgery for the sleep apnea would help Petitioner’s severe case of this disorder by enlarging Petitioner’s breathing airway. The sleep apnea symptoms would have prevented him from driving in the course of his work. Petitioner’s wife observed Petitioner’s condition worsening beginning around August 2, 2002, when Petitioner would come home once or twice a day while working to take a nap. The tumor on Petitioner’s adrenal glands substantially limited major life-sustaining activities. As established by deposition testimony of Dr. Mayeaux, hormones secreted by Petitioner’s adrenal glands were affected by the tumor on his adrenal glands. There was evidence in Petitioner’s blood of over-production of adrenaline, with a by-product being excessive production of epinephrine. That he considered this to be a substantially limiting factor is one reason Mayeaux opined that Petitioner should not be working in his then-existing condition. Deposition testimony of Lori Mitchell establishes that she wrote a letter to Petitioner on September 9, 2002, requesting disability information for short-term disability. Subsequently, she sent a letter to Petitioner approving disability beginning September 13, 2002 Per Petitioner’s medical release provided to her, she had the ability to consult with Dr. Mayeaux. Mitchell was aware of all information received from Dr. Mayeaux. Mitchell was aware that Respondent's Family Medical Leave Act (FMLA) Department sent Petitioner a letter telling him that his absence of August 28, 2002, through October 8, 2002, was recorded as a "serious health condition." She also knew short-term disability was authorized for Petitioner through her department for the period ending October 8, 2002, following a review of his medical records. Short Term Disability is defined under Respondent's plan for associates "who are regularly unable to per form normal duties of their regular occupation due to sickness or injury." Mitchell was also aware of the "pheo" tumor, which can develop on an individual’s adrenal glands. She understood Dr. Mayeaux’s letter to her describing the tumor in Petitioner’s case as "debilitating" to mean "impairing him." She understood Dr. Mayeaux's letter of October 10, 2002, to her to mean Petitioner was prevented "from performing his daily activities" by his symptoms. Mitchell’s supervisor, Noreen Hayes, explained that the approval of the extension of short-term disability benefits through November 30, 2002, was based on "all doctor's notes associated with [Petitioner’s] condition." Mitchell was familiar with Dr Mayeaux's December 5, 2002 letter concerning the sleep apnea and breathing issues of Petitioner, as well as other letters from Mayeaux on December 30, 2002, and January 23, 2003. She identified a Respondent Medical Leave of Absence form executed on December 12, 2002, where his doctor opined Petitioner had "a serious health condition that makes you unable to perform the essential functions of your job" and that the condition would continue until rectified. Dr. Terrell Clark is Respondent's Vice President and Medical Director. He recalled information received regarding high blood pressure and sleep apnea to "evaluate what time might be appropriate for [Petitioner’s] disability." He was also aware of a concern for brain problems due to Petitioner’s head CT scan. He was aware of the "pheo" tumor diagnosis on Petitioner’s adrenal gland and resultant production of abnormal hormones. He also agreed that the condition was very treatable. He also was acquainted with the correspondence of Dr. Mayeaux on Petitioner’s behalf. Dr. Mayeaux opined it would be possible for Petitioner to have performed an office-type job that did not require driving. His ability to provide service to his clients was otherwise unimpaired. During August, 2002 to February, 2003, Petitioner was in constant contact with Respondent personnel and his clients by phone. In the words of Karen Howe, "he was always on the phone" until the end of his employment. The phone was part of his normal job activity. During this same time, Petitioner filled out all his clients’ paperwork and paperwork for their families in regard to financial matters. He was also able to give advice to clients as he always had. There are clerical positions in the field offices of Respondent. In Cincinnati, Ohio, Respondent has hundreds of clerical positions that do not require driving as an essential function of the job. The company has 1,900 clerical sedentary positions. Most of these do not require driving. Dr Mayeaux sent a letter to Respondent dated January 30, 2003, stating that Petitioner could return to work so long as he did not drive. He also told Petitioner earlier that he could work if someone else drove. No direct credible evidence was presented that having Petitioner's wife drive him would not result in a reasonable accommodation for Petitioner. The company does not insure the vehicle Petitioner drove as part of his work. There is also no direct credible evidence that Respondent required Petitioner to be covered with insurance over and above what he and his wife ordinarily carried on their vehicle. No evidence was presented assailing the driving abilities of Petitioner’s wife. Petitioner's job did not require that he drive at any certain time. His wife often rode with her husband while he was meeting with his clients or Respondent personnel during the years of his employment. She routinely went by the local office, saw his manager, and no one ever objected to her riding with Petitioner. Petitioner’s wife asked his district manager, on her husband’s behalf, three or four times if she could drive her husband after he was told by his doctor not to drive. Her requests were denied. She was willing to do this without pay, with the vehicle he customarily used, that they both owned, and kept well insured. She drove him to his last day at work where, when informed that he was fired, he cried. Thomas Johnson is the company vice president responsible for administering Respondent’s leave-of-absence policy. Respondent personnel monitor when an employee "can return to work.” Johnson initially received a form noting Petitioner began his leave of absence as a result of illness on August 28, 2002. Johnson receives information from a Respondent committee that meets to discuss whether to allow accommodations for injured employees. Pursuant to the committee’s action, Johnson notified Petitioner that Short Term Disability was approved through November 30, 2002. Johnson wrote a letter on January 23, 2003, to Petitioner to return to work on full-duty status on February 2, 2003, or be terminated. This letter was based on a meeting of his department’s medical and legal personnel. At the meeting, which resulted in Johnson’s letter to Petitioner, all of those in attendance decided not to accommodate Petitioner. At that meeting they never discussed restructuring or modifying Petitioner’s position or reassigning him, even though the only restriction Johnson was aware of was the restriction on Petitioner’s driving. At that meeting, they did discuss time for Petitioner to provide medical information in regard to Petitioner’s fitness to return to work. As a result of the denial by the committee of further Short Term Disability Leave, Petitioner's right to a further leave of absence ended, absent a "fitness for duty" report. Johnson informed Petitioner of the Respondent committee’s action by another letter dated January 27, 2003, sent from Cincinnati, Ohio, to Petitioner in Pensacola, Florida, through regular post office mail to a numbered post office box. Per that letter, Johnson required that Petitioner have the requisite fitness for duty report by February 3, 2003, or be terminated. Petitioner was not provided the appropriate form for the report as part of this communication and he was not given any time to obtain the information, yet he was terminated for not having it. Johnson instructed Petitioner's District Manager on February 3, 2003, that Petitioner could not work that day because of "unauthorized leave of absence". Johnson sent a letter on February 3, 2003, terminating Petitioner. The clause Johnson used to terminate Petitioner was "absence for two days without notice." Johnson received a letter from Dr. Mayeaux dated January 30, 2003, after he had sent his February 3, 2003 letter to Petitioner. Mayeaux’s letter stated that Petitioner could work as long as he did not drive. Petitioner showed up for work on February 3, 2003, with only the letter of January 23, 2003. The employment agreement provided by Respondent to Petitioner does not spell out what medical evidence is to be provided to prevent application of the "unauthorized leave of absence" clause used to terminate Petitioner. By company policy, there is no right for an unpaid leave of absence because of a disability claim. Johnson was fully informed and received regular information from Lori Mitchell regarding Petitioner’s condition as reported by his doctors to her. When an employee such as Petitioner is absent from the office, this fact is reported to Respondent’s home offices without notice to the affected employee. Dean Vonderheide is the director of Respondent’s benefit department. His testimony establishes that the Summary Plan Description given to Respondent employees for Short Term Disability provides no information regarding where an employee can get the forms to file claims. A terminated employee is not entitled to long-term disability benefits. Neither Lori Mitchell, R.N.; vice president Dr. Clark; or vice president Johnson made any effort to contact Petitioner or his doctor to supplement or add to what was included by Dr. Mayeaux in his correspondence dated January 30, 2003. Petitioner was wrongfully terminated by Respondent on the basis of Petitioner’s disability without fair consideration by Respondent of Petitioner’s request for accommodation, i.e. , that his wife be permitted to chauffer Petitioner in the course of his continued employment or that alternative employment for Petitioner within Respondent’s company be considered by Respondent. Such provision had been made for a former salesperson of Respondent. Petitioner lost wages from his termination of employment with Respondent up and through his death on July 6, 2003. The income tax records in evidence show that Respondent paid Petitioner a total of $42,057.09 in the taxable year 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 16th day of November, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2005. COPIES FURNISHED: Daniel Stewart, Esquire 4519 Highway 90 Pace, Florida 32571 Alice M. Fitzgerald, Esquire Western & Southern Financial Group 400 Broadway Cincinnati, Ohio 45202-3341 Linda G. Bond, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
The Issue The issues in this case are whether Respondent engaged in an unlawful employment practice against Petitioner on the basis of disability, and whether Respondent retaliated against Petitioner in violation of the Civil Rights Act.
Findings Of Fact SLCSO is a law enforcement agency in Port St. Lucie, Florida. On April 15, 1996, Petitioner began employment with SLCSO as a corrections officer. She worked as a detention deputy overseeing inmates and was assigned to booking most of her career. Petitioner was good at her job and typically got above average on her evaluations related to her work performance. She also got along with her colleagues. After 2005, when Wesley had a conflict with Lieutenant Stephanie Lyons ("Lt. Lyons"), Petitioner began to believe that she was working in a hostile work environment and that her colleagues were out to get her at the direction of Lt. Lyons. Wesley reported and filed complaints throughout her employment whenever she believed improper behavior occurred. She reported multiple incidents, including ones where she felt employees made statements about her that were untrue. As a result, numerous investigations were conducted by her supervisors and SLCSO Internal Affairs, to which the majority were concluded unfounded. Many of the incidents Wesley reported were unsettling to her and ultimately made her depressed with anxiety, have panic attacks, and elevated her blood pressure. Lt. Lyons, Lt. Daniel O'Brien ("Lt. O'Brien"), Sergeant Jeffrey Jackson ("Sgt. Jackson"), Sgt. James Mullins ("Sgt. Mullins"), and Sgt. Johnny Henry ("Sgt. Henry") were some of Petitioner's supervisors while employed at SLCSO. One incident that has been extremely troubling to Wesley is her observation of Sgt. Jackson punching a pregnant inmate in the stomach. The incident is so upsetting to Wesley that even though she reported the incident when it occurred, she continues to be upset by the incident and continues to relive it, which distresses her. During her employment, Wesley also lost her mom and brother in the same year, 2011. The losses took an added toll on her and caused more emotional difficulties. Another major personal event that stressed Wesley was that she found out the deputy that she thought she had been in a 15-year monogamous relationship with was having an affair with another deputy on Wesley's shift. Those working conditions caused Wesley even more emotional harm. At some point, Wesley had an emotional breakdown, could not get out of bed, and even thought she no longer wanted to live. Eventually, Wesley's illnesses became debilitating, and her high blood pressure was unstable. Wesley started missing work because of her illnesses. She physically was unable to work. On June 20, 2012, after Wesley was absent five times, she was counseled for abuse of sick leave benefits in violation of SLCSO Policy 5.1.33. During the counseling, Wesley was told she "needs to achieve and maintain an acceptable level of sick time usage to improve [her] below average status. Deputy Wesley will receive a below standard on her evaluation for sick time usage." Wesley first applied for the Family Medical Leave Act ("FMLA") on September 25, 2012, but the process was not completed. On February 25, 2014, Wesley was issued a reprimand for abuse of sick leave in violation of SLCSO Policy 5.1.33 after she was absent another five days in 12 months. She was warned that "any further absences will result in continued progressive discipline." Wesley did not lose pay when she was reprimanded. On or about August 21, 2014, Wesley submitted an Intermittent Family Medical Leave Act request for her own "Serious Health Condition" to the SLCSO Human Resources Office ("Human Resources"). Wesley's application was incomplete. On October 8, 2014, Petitioner submitted the outstanding medical certification needed for the application submitted on August 21, 2014. Human Resource Manager Lori Pereira ("Pereira") denied the FMLA request on October 13, 2014, because the medical certification was submitted untimely, 52 days from the date of Petitioner's last absence. On October 22, 2014, Wesley requested reconsideration of her FMLA application, and Human Resources denied it on October 27, 2014. On March 20, 2015, Wesley requested FMLA leave again. In her application, Wesley provided a medical certification filled out by her cardiologist, Dr. Abdul Shadani ("Dr. Shadani"), which stated the patient will be absent from work for treatment "2-6 per year," and the underlying medical condition is systemic arterial hypertension ("hypertension"). "N/A" was the response Dr. Shadani supplied on the medical certification for probable duration of patient's incapacity. The hours/week section was marked intermittent. The certification box was also checked "No" after the question, "Will it be necessary for the employee to work intermittently or to work less than a full schedule as a result of the conditions?" On April 1, 2015, Human Resources approved Wesley's request for Intermittent FMLA leave due to medical reasons. The approval cycle was from August 21, 2014, through August 20, 2015. Pereira backdated Wesley's leave to August 21, 2014, the date Dr. Shadani identified as the beginning of Wesley's medical condition. The backdating converted Wesley's unexcused absences to excused absences, and she avoided additional disciplinary action for unexcused absences. SLCSO policy required that when an employee is on Intermittent FMLA leave, the employee has to call out as needed and report which type of leave is being used. The policy for taking sick leave required that employees call in two hours prior to the shift and notify your supervisor. Wesley felt it was unnecessary to have to call in so frequently. In order to maintain FMLA leave, employees are required to get renewed medical certifications for the cycles. Human Resources notified Wesley when she needed to provide a physician recertification to continue her FMLA leave. When Wesley had to get recertifications, she felt like it was too frequently and that she was being harassed. Obtaining recertifications required that Wesley pay co-pays, which she believed were very expensive since she was not working. Wesley also felt like she was being punished for using the FMLA leave benefit. During the August 21, 2014, to August 20, 2015, FMLA leave cycle, Wesley was absent approximately 444 hours. Pereira discovered Wesley's high leave rate, 444 hours, and noticed that it did not coincide with the projected two to six absences a year on the medical certification. Pereira conferred with her supervisor, Lt. Sheeler, and they decided to verify with Dr. Shadani whether the 444 hours were absences related to Wesley's underlying medical condition to which Wesley had FMLA leave approval. On August 31, 2015, Pereira wrote Dr. Shadani a letter inquiring about the 444 hours Wesley had been absent. By facsimile dated September 4, 2015, Dr. Shadani responded to Pereira's request and confirmed that the amount of absences listed in the medical certification was correct without further explanation or reference to Wesley's hypertension. On September 9, 2015, Human Resources approved Wesley's Intermittent FMLA request for the August 21, 2015, through August 20, 2016, cycle for Petitioner's own serious health condition. It was backdated to cover the dates Wesley missed back to August 21, 2015, even though the recertification was not completed until near the end of the covered FMLA period. While working at SLCSO, Wesley sought mental health counseling to help deal with her feelings about the workplace. She wanted to continue working for SLCSO and perform successfully. Human Resources decided they needed a better understanding of Wesley's condition with the extensive time she had been absent contrary to Dr. Shadani's absence projection. Pereira and Lt. Sheeler decided to request a second opinion since no detailed information was provided from Dr. Shadani. Pereira contacted Dr. Joseph Gage ("Dr. Gage"), a cardiologist and requested that he provide a second opinion. Dr. Gage was asked to review Wesley's job description and evaluate if her 444 hours of absences were reasonable for her medical condition, provide the reasoning for the number of absences from work for her medical condition, and determine if Wesley was capable of performing her job functions. SLCSO also requested that they be invoiced for the co-pay for Wesley's visit to Dr. Gage. On or about September 29, 2015, Pereira spoke with Wesley and told her she needed to go get a second opinion and that SLCSO was choosing a cardiologist, Dr. Gage, for the mandatory second opinion. That same day, Wesley received a call from Stuart Cardiology that she needed to report for a second opinion. SLCSO set up the appointment for Wesley. Wesley felt that SLCSO's making her report for a second opinion was harassment after her doctor, Dr. Shadani, had already responded to the Human Resources' request. Wesley emailed Pereira and told her "I am starting to feel punished for being on FMLA." Wesley also emailed Pereira and asked for the "specific reason(s) for your request for a second opinion." On or about October 2, 2015, Pereira responded to Wesley by email and stated: As I mentioned in our phone call a few moments ago, since Dr. Shadani's medical certification states that you would be absent for treatment for your medical condition for 2-6 times per year and due to the fact that you missed 444 hours within the past year, we are requiring this second opinion with our choice of cardiologist, Dr. Gage. On October 5, 2015, Dr. Gage evaluated Wesley. On October 9, 2015, Dr. Gage provided Human Resources his results of Wesley's evaluation. Dr. Gage was not able to confirm if the absences were from Wesley's hypertension because he did not have her blood pressure measurements during the absent dates. However, Dr. Gage was concerned about Wesley's blood pressure level and instructed Wesley not to return to work until the hypertension was more regulated. Dr. Gage also recommended Wesley expedite a visit to her cardiologist, Dr. Shadani, before being released. Wesley was released to return to work by Dr. Shadani on October 6, 2015. However, she did not provide her return to work release to Human Resources, contrary to SLCSO policy. Instead, Wesley provided the doctor's note to her supervisors. SLCSO policy requires medical clearance be provided to Human Resources if a deputy has missed more than 40 hours of consecutive work. On October 20, 2015, Kimberly Briglia ("Briglia"), the then human resources manager that replaced Pereira, called and told Wesley that a physician medical clearance had to be provided to Human Resources for her to return to work. Briglia's call was followed up by an email, and Wesley felt harassed, which she reported. On October 23, 2015, Lt. Sheeler reminded Wesley by memo that she had been sent an email by Human Resources on October 19, 2015, requesting a fitness for duty evaluation be provided by her physician. The memo informed Wesley that it was a "direct order" that she provide a fitness for duty report by November 2, 2015. Human Resources had sent previous correspondences to Wesley by certified mail that were returned unclaimed. SLCSO's practice was to have documents personally served by Civil Unit deputies when certified mail was unclaimed. Since Wesley had not been claiming her certified mail, Briglia had the SLCSO's Civil Unit personally serve Wesley at her residence with Lt. Sheeler's fitness for duty report memo dated October 23, 2015, to ensure Wesley received it because of the November 2, 2015, impending deadline. Wesley believed the personal service was harassment, and having to go to another doctor for a fitness of duty clearance was also harassment. On October 30, 2015, Wesley provided the fitness for duty report to Briglia and Lt. Sheeler. On October 31, 2015, Wesley was released to full duty without restrictions. On January 5, 2016, Human Resource Specialist Caitlyn Tighe requested Wesley provide a medical recertification to continue her FMLA leave. On January 22, 2016, Wesley provided Human Resources a FMLA medical certification signed by Dr. Shadani even though she felt it was harassing when SLCSO requested such documentation. On March 7, 2016, Wesley requested a retroactive pay increase because she believed that a deputy had received a similar pay increase and that she deserved the same. Wesley continued to believe that her supervisors were harassing her. On or about March 24, 2016, Wesley reported to Captain William Lawhorn ("Capt. Lawhorn") that she had been mistreated by Lt. Lyons yet again, as she had been doing since 2005. Wesley complained of the following problems with Lt. Lyons: Lt. Lyons assigned Sgt. Jackson over Wesley because he was "someone who feeds off of [Lt. Lyons]." Lt. Lyons tried to discipline Wesley while she was applying for FMLA leave. Lt. Lyons directed Sgt. Tom Siegart ("Sgt. Siegart") to call Wesley to let her know that she would need a doctor's note to return to work if she was out another day because she was on her third consecutive sick day. The "needs improvement" on Wesley's performance evaluation was only the rating because Lt. Lyons directed Sgt. Siegart to lower it. Lt. Lyons asked the deputies over radio communications had they seen Wesley who was late for roll call. Wesley believed Lt. Lyons was trying to embarrass her by calling her over the radio and not looking for her when she came in late. On April 19, 2016, Director of Finance Toby Long denied Wesley's request for a pay increase and explained that in 2007, Wesley had been provided an increase that corrected the discrepancy in her pay grade. He also informed Wesley that she had been paid properly since the 2007 increase. On April 22, 2016, Capt. Lawhorn had a meeting with Wesley and Lt. Lyons to discuss the March 24, 2016, complaint. Lt. Lyons agreed not to address Wesley publicly on the radio and talk with her privately going forward. Wesley declined the transfer Capt. Lawhorn offered, and Wesley and Lt. Lyons agreed they could work together. Capt. Lawhorn found no misconduct for any of the five complaints Wesley made on March 24, 2016. He found that the assignment of Sgt. Jackson was an arrangement based on need. The corrective action was moot because it was retracted when it no longer applied since Wesley's FMLA leave was backdated. He also determined that Lt. Lyons frequently used the radio to communicate all issues to deputies and was not singling Wesley out. Next, Capt. Lawhorn decided it was common practice to have a deputy call to check on another deputy about leave and to determine how to plan the work schedule. He also concluded Lt. Lyons used proper discretion when lowering Wesley's rating to "needs improvement," because Wesley had a zero sick leave balance and was tardy to work. Lastly, Wesley had been late at roll call; so, it was appropriate to look for her. Soon after the meeting, Wesley complained to Capt. Lawhorn that Lt. Lyons had discussed the meeting with Lt. Lyons' friend, Deputy Denetta Johnson ("Dep. Johnson"), and Dep. Johnson glared at her. Capt. Lawhorn followed up the complaint by investigating. He met with Dep. Johnson and found out that Lt. Lyons had not discussed the meeting with her. On May 27, 2016, Wesley provided SLCSO a Certification of Health Care Provider for Employee's Serious Health Condition signed by Dr. Shadani to continue her FMLA leave. In May 2016, Wesley's Intermittent FMLA was approved after she provided the FMLA medical recertification to Human Resources. In May 2016, Capt. Lawhorn tried to assist Wesley and found himself compiling a history of Wesley's career, including ten years of complaints against Lt. Lyons and other supervisors, reviewing her discipline and attendance history, medical condition, FMLA leave, and injuries. He evaluated Wesley's complaint that Lt. Lyons and the other supervisors were causing her undue stress and that she was being treated differently. Capt. Lawhorn discovered that Wesley had ten corrective actions for her whole tenure with the sheriff's office, which were related to neglect on-duty charges or sick leave abuse. Her record confirmed approved Intermittent FMLA leave for a personal, serious medical condition. Capt. Lawhorn's review found that Wesley's work history pattern of declining attendance, including periods without a full paycheck, started in 2013 and included: 2013, missed two full paychecks; 2014, missed one full paycheck; 2015, missed ten full paychecks; and 2016, missed four out of nine checks (YTD). Capt. Lawhorn addressed the possibility of Wesley qualifying for workers' compensation benefits because of her complaints about workplace stress, anxiety, and interactions with Lt. Lyons. Capt. Lawhorn addressed the issues in a memo to Major Tighe dated May 16, 2016. However, it was determined that Wesley did not qualify for workers' compensation benefits. By July 2016, Wesley's FMLA leave was running out. Human Resources Clerk JoLeah Rake prepared and sent a letter to Wesley to notify her that the FMLA leave exhausted July 26, 2016. The letter was returned unclaimed. Briglia determined that notifying Wesley that her leave was exhausted was an urgent matter and that she requested personal service to Wesley's residence by the SLCSO Civil Unit to ensure Wesley received the notice. On or about August 3, 2016, Wesley provided a return to work note to Briglia from Dr. Denise Punger ("Dr. Punger"), stating that Wesley could return to work on August 5, 2016. Wesley had just missed five days of work. Briglia could not determine the nature of Wesley's illness because Dr. Punger's note did not provide an explanation for Wesley's five absent days of work. Also, Dr. Punger was not Dr. Shadani, the doctor who had previously provided Wesley's medical certifications for FMLA leave. Briglia was concerned for Wesley's safety and the safety of her co-workers. On August 4, 2016, Briglia made an independent Human Resources decision and requested by letter that Wesley provide a more detailed explanation from Dr. Punger for her absences, to ensure Wesley was fit for duty to return to work. Briglia had the Civil Unit personally serve the letter dated August 4, 2016, to Wesley at her residence. On August 4 2016, Wesley called Briglia to address her displeasure with the request for details from her physician and the personal service at her residence a second day in a row. Wesley described the SLCSO actions as embarrassing, harassment, retaliation, discrimination, and a violation of her rights. Wesley informed Briglia that they were making her situation worse. Briglia told Wesley she would return her call. On August 5, 2016, together Briglia and Lt. Sheeler called Wesley back to explain that it was within SLCSO policy to verify details of medical conditions. They further told Wesley that since the release was signed by a physician other than Dr. Shadani who had previously provided the explanation for her FMLA leave medical certifications and absences, the medical reasons for the absences needed to be clarified and provided. Lt. Sheeler and Briglia also told Wesley that workplace safety was the priority that created the need for the request in order to both protect employees and to make sure SLCSO is not going against the orders of Wesley's doctor. It was also explained to Wesley that civil service was necessary because she did not claim her certified mail, she needed to be notified, and she could not return to work without a fitness for duty clearance. Wesley did not believe Briglia and Lt. Sheeler. Each request for medical documents caused Wesley additional stress. Wesley admitted at hearing that she did not claim her certified mail. Afterwards, Wesley provided a medical excuse slip from Dr. Punger, clarifying that Wesley's absences were due to migraines and high blood pressure. Human Resources allowed Wesley to return to work after receiving Dr. Punger's excuse slip. On August 22, 2016, Wesley filed a complaint against Briglia. On August 22, 2016, Wesley received a corrective action for abuse of sick leave and an informal counseling for the five sick absences in four months that were not FMLA leave related. Wesley violated agency policy by taking time off without accrued sick leave. On or about September 8, 2016, Wesley provided SLCSO a Certification of Health Care Provider for Employee's Serious Health Condition signed by Dr. Shadani. On September 19, 2016, Wesley filed a complaint regarding the August 22, 2016, corrective action. After reviewing the corrective action, Capt. Lawhorn found the corrective action appropriate and the informal discipline fair and supported by policy. Wesley did not lose pay for the discipline. On September 22, 2016, Wesley filed a discrimination case with the FCHR, alleging SLCSO discriminated against her by subjecting her to harassment and discrimination, and retaliation, for taking FMLA leave due to her disability, hypertension. On March 16, 2018, FCHR issued a Determination: No Reasonable Cause. Wesley filed a Petition for Relief on or about April 12, 2018, to contest the determination. Wesley claims in her petition that the requirement that she acquire a second opinion from Dr. Gage, the personal service to her residence by the SLCSO Civil Unit deputies to deliver correspondence, and the requirement that her physician, Dr. Punger, clarify her medical condition to return to work were harassment, discrimination, and retaliation for her utilizing her FMLA leave benefit.
Conclusions For Petitioner: Peggy F. Wesley, pro se (Address of Record) For Respondent: R. W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 30th day of August, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) R. W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 (eServed) Peggy F. Wesley (Address of Record-eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent employer is guilty of an unlawful employment practice (discrimination under Section 760.10, Florida Statutes) against Petitioner on the basis of his race (Black/African-American), handicap, or retaliation, and if so, what is the remedy? Although cases arising under the federal Americans With Disabilities Act (ADA) may be instructive for interpreting and applying the handicap provisions of Chapter 760, Florida Statutes, Petitioner's claim under ADA and any allegations of libel and slander are not within the jurisdiction of the Division of Administrative Hearings.
Findings Of Fact Petitioner, Lawrence James, Jr., is a Black/African- American. Respondent, The Alachua County Department of Criminal Justice Service, is an "employer" within the definition in Section 760.02(7), Florida Statutes. Respondent operates the Alachua County Jail. Respondent maintains a paramilitary command, advancement, and ranking system for its employees. Petitioner began his employment with Respondent as a Correctional Officer and rose to the rank of Sergeant. On March 2, 1994, an inmate escaped from the Alachua County Jail during the evening shift. As a result of the inmate's escape, several correctional officers were disciplined. Petitioner was disciplined by a reduction in rank April 26, 1994. (P-37) There were allegations that harsher discipline had been meted out to the Black/African-American officers, and the matter was arbitrated, pursuant to the union collective bargaining contract. As a result of the arbitration, in the summer of 1994, it was recommended that Petitioner be returned to his position at the Jail with restoration of rank, but without any back pay. However, at the time of that recommendation, Petitioner already had been terminated for "a non-related infraction of county policy." (P-37) The "non-related infraction of county policy" reason for Petitioner's 1994 termination was not established on this record, but neither was any discriminatory reason proven.2 After Petitioner's 1994 termination, further proceedings ensued, and Petitioner was ultimately restored to his rank and position at the Jail. As part of this restoration, it was agreed the Respondent employer would conduct training and re-orientation sessions for Petitioner, since he had not actively been performing his duties at the Jail for approximately two years. The present case only addresses the discrimination Petitioner allegedly suffered due to race, handicap, or retaliation concerning his leave requests in 1996, and his 1997 termination for unauthorized absence. After his second successful arbitration(s) and/or grievance procedure, Petitioner was eligible to return to work on February 19, 1996. He did not return on that date. Respondent ordered Petitioner back to work on March 13, 1996, at which time Petitioner requested, and was granted, leave under the Family Medical Leave Act (FMLA). It is not clear if Petitioner ever made Respondent aware that he suffered from high blood pressure, but from the evidence as a whole, it is found that Petitioner notified Respondent in March 1996, that he was suffering from a prior on- the-job injury to his back, diabetes, and depression. Diabetes, as experienced by Petitioner, is a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. Clinical depression, as experienced by Petitioner, is a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. Petitioner contended at hearing that his clinical depression in 1996 was due to his 1994 demotion and termination and the procedures to get his job back and also due to the hostile work environment he anticipated he would face if he returned to work daily in 1996 with people whom he perceived as having lied about him and who had tried to terminate him. It should be noted that Petitioner did not clearly include "hostile work environment" in either his 1998, Charge of Discrimination or his 2000, Petition for Relief. The Florida Commission on Human Relations only considered and referred the instant case upon allegations of discrimination on the basis of race, handicap, and retaliation. From Petitioner's description of his back ailment, it is found that condition also constituted a "handicap" within the meaning of Section 760.10(1)(a), Florida Statutes. From Petitioner's description of how his back injury affected his daily life and job performance, it is very doubtful that Petitioner was able to physically fulfill the requirements of being a jailor at any time in 1996 until he was terminated in 1997. No evidence was presented with regard to the workers' compensation consequences of this situation. By an April 1, 1996, letter, Respondent's Interim Director of Criminal Justice Service, Richard Tarbox, informed Petitioner that he had exhausted his sick leave credits as of the pay period ending March 31, 1996; that based on Respondent's records, Petitioner would exhaust the balance of his accrued sick leave at the rate of forty hours per week during the pay period ending May 12, 1996; that he was expected to know his available accrued leave credits and to contact his immediate supervisor at least one week prior to the expiration of the current leave period to request leave without pay if he anticipated not returning to work; and that he had been placed on FMLA leave for an indefinite period, not to exceed twelve weeks, which would expire on June 6, 1996. (R-30) The April 1, 1996, letter specifically informed Petitioner that failure to come to work or contact Respondent could be considered abandonment of his position. (R-30) The foregoing instructions concerning "abandonment of position" parallel Alachua County's Personnel Regulations and Disciplinary Policy, hereafter sometimes referred to collectively as "personnel regulations." (P-1). Chapter XIX. 3. OFFENSES AND PENALTIES; c. Group III Offenses No. 8, at pages 5-6, of the personnel regulations had existed prior to Petitioner's 1994 termination, and was in effect at all times material. It provided, Absence of three consecutive work days without proper authorization at which time the employee is considered to have abandoned the position and resigned from the County's employ. The personnel regulations also provided in Chapter XIX. 3. OFFENSES AND PENALTIES; a. Group I Offenses No. 8, at pages 3-4, that the following offense would subject an employee to progressive discipline: Absence without authorization or failure to notify appropriate supervisory personnel on the first day of absence. (Emphasis supplied). This regulation also had remained unchanged since Petitioner's last employment with Respondent in 1994, and was in effect at all times material. Progressive discipline for the first such offense was written instruction, counseling and/or one-day suspension. For the second occurrence, one to five days' suspension was specified. For the third occurrence, up to five days' suspension or discharge was specified. These provisions also had remained unchanged since Petitioner's last employment with Respondent in 1994 and were in effect at all times material. Petitioner was also familiar with the long-standing progressive discipline system of Respondent's personnel regulations. Basically, this system required that discipline first be proposed in writing by a superior. The proposed discipline would go into effect and become actual discipline if the employee did not appear at a hearing to dispute the charges or the proposed discipline. If the employee prevailed at the hearing, the proposed discipline would be rescinded or altered. If the employee did not prevail, the proposed discipline would be reduced to writing in another document, and the employee then had the option of filing a grievance pursuant to the union collective bargaining agreement or of appealing through the personnel system to a citizens' board. While Petitioner had been absent in 1994-1996, a new requirement had been added to the personnel regulations, under Chapter A-299, which required that employees who planned to be absent, must notify their immediate supervisor no later than 30 minutes from the time they are scheduled to report for work. (Emphasis supplied) The "immediate supervisor" or "appropriate supervisory personnel" in Petitioner's situation would have been the lieutenant on his shift. However, Petitioner and Lt. Little, who became his supervisor, concurred that the custom at the Jail always had been to require that employees contact the shift sergeant on the shift preceding an emergency absence, or if that were not possible, to contact the employee's own shift sergeant or anyone else on that shift. Jail custom also provided that the employee who was going to be absent could rely on any person on his shift to deliver his oral message to the employee's supervising lieutenant and that approval or disapproval paperwork would be handled by that lieutenant after notification. On June 6, 1996, Petitioner still had not returned to work. Instead, he requested leave without pay until June 15, 1996. Respondent granted Petitioner's request. This constituted an accommodation of Petitioner's handicap(s) in that he had no remaining earned leave or entitlement to FMLA leave, yet his employer held his position open for his return. On or about June 10, 1996, Anthony F. Greene, Ph.D., a clinical psychologist at Vista Pavilion, a free-standing psychiatric facility, released Petitioner to return to work. He wrote to Respondent's Risk Manager that Petitioner continued to have problems with depression, which might prove "volatile" in a work environment with superiors Petitioner believed had harassed him by terminating and blaming him for the 1994 escape. At approximately the same time, Richard Greer, M.D., medical specialty unexplained, also released Petitioner to return to work, upon the conditions that Petitioner continue to see Dr. Greene on a weekly basis and continue to take his prescriptive medications. By a July 17, 1996, letter (P-4), Interim Director Richard Tarbox notified Petitioner to report for work at the Jail on the evening shift of July 22, 1996. The letter required Petitioner to continue his sessions with Dr. Greene; to continue to take his prescriptive medications; and to take the re- training and re-orientation specified as a result of the resolution of his 1994 termination and return to work. (See Finding of Fact 7.) The July 17, 1996, letter also included the sentence, We are in the process of contacting Dr. Greene to establish a procedure to verify that you continue your sessions with him. Petitioner interpreted this sentence as the employer's promise "[T]o get all my leave slips, find out when I was going to the doctor, my mental condition, and also my medical condition." (TR-Vol.II, pages 175-176) Petitioner's interpretation of this sentence was unreasonable in light of its express language, the context of the remainder of the July 17, 1996, letter, the instructions of the April 1, 1996, letter (See Findings of Fact 16-17), and what Petitioner already knew of the County's personnel regulations and/or the Jail custom requiring him to call in and/or apply for leave to be subsequently approved or disapproved by his supervisor. Nothing in the July 17, 1996, letter altered the requirements of the personnel regulations or the April 1, 1996, letter. Petitioner bore the responsibility to ask for medical leave sufficiently in advance of his absences. On July 22, 1996, Petitioner reported for work at the Jail as instructed and was assigned to an evening shift supervised by Lt. Stover. According to Sgt. Babula, Petitioner also worked under Shift Sgt. Withey at some point in July 1996. However, by July 1996, Petitioner was an insulin- dependent diabetic. He needed to self-administer a shot of insulin each morning and night. To ensure ideal spacing of these two shots, Petitioner almost immediately requested to work the day shift. Respondent accommodated this request concerning Petitioner's handicaps and assigned him to the day shift under Lt. Little and Sgt. Babula, as shift sergeant. Petitioner claimed his handicaps were not accommodated by Respondent, but in addition to approving leave for him from February 19, 1996, to July 22, 1996, not replacing him during that period, and the change of shift made in July 1996, at Petitioner's request, Sgt. Babula testified to approving special shoes for Petitioner due to his diabetes. By September 1996, Petitioner again had used up all of his accrued leave. Accordingly, he had to ask for leave without pay to visit his various doctors, including Dr. Greene. On September 9, 1996, during a therapy session, Petitioner told Dr. Greene that he had been threatened on the job and that he was pursuing resolution of the incident through appropriate channels. The same day, Dr. Greene wrote to Lt. Little, telling him of the threat. The nature of this alleged threat or who made it was not stated in Dr. Greene's letter or at hearing. The letter cleared Petitioner to return to work September 12, 1996. This out-of-court statement to his psychotherapist at that time does not establish the truth of the statement or that Petitioner's superiors made the alleged threat. Also, the threat, if one existed, could not have related to Petitioner's written leave requests, because Petitioner's earliest dispute about leave did not occur until September 13, 1996. (See Finding of Fact 41). The September 9, 1996, date was not related by testimony to any oral or written request for leave or any disciplinary matter in evidence. Petitioner testified to having been threatened on the job sometime prior to September 9, 1996, but he never testified what the threat was, why the threat was made, or by whom the threat was made. Petitioner's witness, Alfred Dickerson, also is African-American. He testified generally that it was "pure hell" at the Jail for anyone who, like himself and Petitioner, had been disciplined due to the 1994 escape and who had prevailed in the resultant grievance activities, but he could not remember any specific incidents involving Petitioner. Moreover, Mr. Dickerson was out of the Jail, on workers' compensation leave, from May 1996 to October 1997, the whole of the material time frame for this case.3 On September 16, 1996, Petitioner submitted an "after the fact" request for leave without pay to Lt. Little, his supervisor, for the previous dates of September 13 and 15, stating thereon that he had been ill those days and that the request was being made because his request to work his days off to make up for the 16 hours of leave he had used on September 13 and 15 had been denied. The request does not specifically mention "flex time." (P-6) "Flex time," as described by both Petitioner and Lt. Little, would have permitted Petitioner to work his days off, instead of taking time off without pay to make up time used to go to his doctors on days he was scheduled to work. However, if an employee asked to use flex time in this way, another employee had to trade days with him, and the exchange would be worked out by the supervising lieutenant. On October 1, 1996, Petitioner was given a "Letter of Warning" by Lt. Little. The Warning reflected that Petitioner's advising a sergeant other than his immediate supervisor, Lt. Little, on September 24, 1996, that he was not coming to work until some personal matters were taken care of, was insufficient notice and was being treated as "absence without authorization" in violation of the personnel regulations. It also stated, It has been standard practice and understood that you must notify your immediate supervisor . . . please be advised that any further violations of this nature may result in docked pay and progressive disciplinary action . . . Attached to this document was a Notice of Disciplinary Action, also prepared October 1, 1996, stating, Disciplinary action taken as a result of the Notice of Proposed Disciplinary Action dated blank not filled in. (Except for WARNING) WARNING (Reasons for warning): Violation of Alachua County Personnnel Regulations, Chapter XIX, Section 3, a., Group I, Offense No. 8 'Absence without authorization'. (P-8) The same document notified Petitioner that he had a right to appeal the Warning pursuant to either the personnel regulations or the grievance procedure in the collective bargaining agreement, as appropriate. Petitioner did not acknowledge receipt of this latter document until October 7, 1996. (P-8/R-19) Also on October 1, 1996, Petitioner submitted an "after the fact" request for leave without pay for September 23- 26 and for September 29-30, to Captain King. The reason for Petitioner's absence September 23-26 was not stated on the formal request, but Petitioner did again state thereon that his request to "flex" his days off had been denied, presumably by Lt. Little. The time for September 29-30 was requested for "personal business and emergency family leave without pay" due to his mother's seeing a doctor about her detached retinas. (P-7) Respondent is not obligated under Chapter 760, Florida Statutes, to accommodate Petitioner's family's handicaps.4 On October 21, 1996, a "Notice of Proposed Disciplinary Action" was issued by Lt. Little, apparently covering the same date, September 24, 1996, as his October 1, Warning, and adding other dates. The reasons for the proposed discipline given in this October 21, 1996, Notice differ slightly from the content of the October 1, Warning. The October 21, 1996, Notice related that on September 23, Petitioner had spoken to Captain King and Lt. Little, and because his request for leave had been made in advance, Petitioner had been granted the day off; that on September 24, Petitioner had failed to report to work and failed to request an extension of leave, and he was therefore considered to be "absent without authorization" for September 24, 1996. The October 21, Notice further stated that on September 25, Petitioner had called Captain King, requesting leave without pay for September 25 and 26, and because Petitioner had requested leave in advance, Captain King had granted the request covering those two days, but that on his October 1, leave request (see Finding of Fact 44) Petitioner had included two more days, September 29 and 30, which had not been previously authorized. Finally, the October 21, Notice indicated that on September 30, Petitioner had called Lt. Stover to say that he would be reporting to work as soon as he was through testifying to the Grand Jury that afternoon, and that his failure to request leave in advance was being treated as "absence without authorization and failure to request leave without pay in advance." As of this October 21, 1996, Notice, the proposed disciplinary action became suspending Petitioner without pay. Petitioner was offered an opportunity to contest the proposed disciplinary action at a hearing on November 19, 1996. Petitioner acknowledged receipt of this document on October 24, 1996. (R-21) On October 22, 1996, Petitioner wrote to the Interim Director of the Jail, Richard Tarbox. In his letter, Petitioner complained that he had not yet received the agreed re- orientation and re-training. He also discussed his medical problems, including problems with recent changes in his medications and his five-year-old back injury. He requested flex time and related that his life had been threatened by employees on the job (see Findings of Fact 37-40), and that Lt. Little had been informed of the threats and flex time request, but the letter again did not indicate by whom Petitioner was threatened or why. (P-10) Despite Petitioner's after-the-fact written requests for flex time, Lt. Little had no recollection of Respondent ever asking him for flex time. There is no evidence that Lt. Little, Mr. Tarbox, or any other representative of Respondent contacted Petitioner concerning the alleged threat against him or specifically addressed the issues of re-orientation/re-training or flex time. On October 25, 1996, Dr. Greene also wrote Mr. Tarbox. He described Petitioner as cooperative and not evidencing any inappropriate behavior. He reported that Petitioner had voiced no homicidal or vengeance ideation to him. He felt that Petitioner's supervisors' requirement that Petitioner use leave to attend the mandatory therapy sessions with him constituted a paradox and a stressor for Petitioner. He felt that other stressors were the employer's failure to offer re-orientation/ re-training to Petitioner and the employer's failure to contact him, Dr. Greene, to verify treatment purposes and schedules. Dr. Greene requested that Mr. Tarbox clarify Petitioner's treatment and work status to both him and to Petitioner in a timely manner because not doing so was exacerbating Petitioner's physical condition, headaches, and diabetes. He further stated that he could release Petitioner for work without further psychological treatment and that further psychological treatment was not necessary to ensure Petitioner's fitness for work or to prevent his being a risk to others, but that Petitioner would continue in therapy for other purposes. (P-11) Neither Mr. Tarbox nor any other representative of Respondent specifically replied to Dr. Greene's October 25, 1996, letter. However, all leave disputes pending on that date were addressed in a November 22, 1996, letter to Petitioner from Captain King. (See Findings of Fact 57-59.) On October 31, 1996, Petitioner submitted an "after the fact" request for eight hours leave without pay for leave he had taken on October 30, 1996, for "emergency dr. app't for work related injury, and lab work for diebetic [sic] condition." (P-14) At some point, a leave form for eight hours leave without pay on November 9, 1996, was prepared. It indicates that Petitoner was "unavailable to sign." This form was disapproved by Lt. Little and by Mr. Tarbox on November 12, 1996. Apparently Petitioner only signed the request on November 26, 1996. (P-21) On November 14, 1996, Petitioner submitted a request for two hours leave without pay for November 15, 1996, for "work related condition, Dr. Greene." (P-15) On November 19, 1996, Petitioner submitted a request for two hours leave without pay for November 22, 1996. The request was approved by a supervisor on November 19, 1996. (P-17) On November 22, 1996, Captain King issued a "Letter of Warning" to Petitioner. It stated that on November 19, 1996, a disciplinary hearing had been held (see Finding of Fact 47) regarding the October 21, Notice of Proposed Disciplinary Action, addressing Petitioner's absences on September 29-30, 1996, and that because Petitioner had proven that he had attempted to contact his supervisor in advance of his absence, the September 29 violation was being withdrawn. With regard to the September 30 violation charged, it was found that Petitioner had contacted Lt. Stover and informed him that Petitioner would return to work after testifying before The Grand Jury, and since Petitioner had not returned to work on that day after testifying, he was being found guilty as charged for violation of Alachua County Personnel Regulations, Chapter XIX, Section 3. a. Group I, Offense No. 8, "Absence without authorization and failure to request leave without pay in advance." The November 22, 1996, letter went on to warn Petitioner that future violations would be more carefully scrutinized for strict adherence to the policy of notification and that failures on Petitioner's part might result in progressive disciplinary action being taken. (P-20) Because prior discipline had been overturned or rescinded, the November 22, 1996, Letter of Warning was technically Petitioner's first violation/discipline. Also on November 22, 1996, Petitioner submitted to Lt. Little a leave request form, dated the same day, labelled "FOR INFO.," with supporting documentation, including Dr. Hunt's certificate showing Petitioner had been treated on November 4, and November 22, 1996, had office management of HTN/NIDDM hematuria, a pending IVP and urology consult, and would need to be seen again by Dr. Hunt in 4-6 weeks. The language of one attachment showed Petitioner "is under Dr. Hunt's continual care," but nothing specified any period of time Petitioner intended to take off from work for the pending consultation or any other purpose. (P-19) Petitioner testified that his November 22, 1996, leave request was not intended to request any leave at all when he submitted it, but that it should have alerted his supervisors that Petitioner had a growth between his legs that was potentially malignant and that he needed an operation sometime in the future. A reasonable person would not have concluded this from the four corners of the November 22, 1996, written request with attachments dated for past medical appointments. Petitioner also testified that by submitting the November 22, 1996, leave request "in blank" and explaining orally to Lt. Little what he intended to do was his effort to comply with the requirement that he ask for leave in advance of taking it. This testimony shows that Petitioner at this point understood the employer's prior instructions to request leave in advance. Apparently, Petitioner envisioned only having to phone in to get any member of his shift to fill in the blanks on his November 22, 1996, request form, but he admitted he had never before used a blank leave request in this way. Petitioner further testified that he had told Mr. Tarbox and other supervisors at a meeting (probably one of his disciplinary hearings) before Christmas 1996, that he "did not know how long he could work." While this representation of Petitioner is credible and it may be reasonably inferred that Mr. Tarbox understood Petitioner was debilitated to some degree by the growth and might need an operation sometime in the near future, it does not logically follow that all those hearing Petitioner at that time understood that his oral statement related to the November 22 blank leave request which had attached to it only information about past doctors' appointments and potential, undated, future consultations. Petitioner's vague statement at the meeting/hearing did not comply with the letter of the personnel regulations nor the custom at the Jail for requesting leave. The blank November 22, 1996, leave request marked "FOR INFO" also did not comply with the letter of the personnel regulations nor the custom at the Jail. There is no requirement that Respondent grant Petitioner an open-ended request for leave or one that specifies no time period at all. Petitioner's November 22, 1996, blank leave request was never approved. On November 26, 1996, Petitioner also acknowledged receipt of a "Notice of Proposed Disciplinary Action," by which Lt. Little and Mr. Tarbox recommended that Petitioner be suspended without pay.5 Petitioner was again offered an opportunity to contest this proposed disciplinary action at a hearing on December 3, 1996. (P-18) The record is silent as to whether a disciplinary hearing was actually held on December 3, 1996. Petitioner submitted a leave form on December 6, 1996, for 2.5 hours "vacation" leave without pay on December 3, 1996, for a "Conference with doctor to try an [sic] stop continued disciplinary action because of illness doctor approved." (P-23) On December 3, 1996, Petitioner had telephoned Lt. Little to ask if his message had been received. He then reported to work at 10:00 a.m. Respondent's business records (P-22) show the following: Petitioner worked December 4-5, some of December 6, and all of December 7, 1996. He was not required to be at work on December 8-9. He called in sick on December 10-11. On December 12, he reported for work and attended five hours of drug policy training. Then he left for medical reasons and later called in to say he was too sick to return to work. On Friday, December 13, Petitioner called in sick, saying he was going to the doctor for a cut foot. He later called in again and was told that he needed to do his timesheet and it was agreed he would do it and have it in the following Monday. Petitioner was absent on Saturday, December 14. He was not required to be at work on December 15-16, 1996. On Monday, December 17, Petitioner did not phone or appear for work. On December 18, Petitioner phoned in, saying he had to wear bedroom slippers and had domestic problems. On December 19, Petitioner called in late and left a voice message on the Jail phone. On Friday, December 20, Petitioner called in on time but said he would not be in until Tuesday of the following week. He gave no reason. He was not required to be at work on December 22-23. On December 24, 1996, Petitioner did not come to work or call in. On Christmas Day, Petitioner called in before shift and stated he would not be in that day or the following day, December 26, 1996, until 10:00 a.m. On December 26, December 27, and December 28, Petitioner did not report for work or call in. Petitioner was not required to work December 29 or 30, 1996. On December 31, Petitioner called and said that he would not be in that day but would call back to talk to the shift lieutenant. He did not do so. Also, Petitioner did not report for work or call in for January 1 through 4, 1997. Most of this business record was substantiated by the direct testimony of Sgt. Babula and Lt. Little who observed the events and wrote most of the business record. The matters that were not confirmed in their direct testimony were supported by the type of hearsay that explains or supplements direct evidence and is admissible in this type of proceeding. Petitioner acknowledged that the business record was essentially correct as to days he was absent in December 1996, and January 1997. Petitioner's testimony only varies the foregoing business record to the effect that on December 10, 1996, not December 13, 1996, Petitioner called and spoke with Sgt. Withey, stating that he would not "be back [to work] until [he had] seen and heard from [his] doctors," and related to Withey that he had some problem with his foot. Petitioner assumed that his superiors would get this message and would understand that he meant he was exercising the blank November 22, 1996, leave request. (See Findings of Fact 60-66). His superiors did not infer from this message what Petitioner had hoped they would. A reasonable person would not infer all that from the information Petitioner says he provided Sgt. Withey. It is uncontested that Petitioner did have an injury to his foot at this time and that such injuries can be particularly hazardous to persons who, like Petitioner, suffer from diabetes. From December 4, 1996, onward, Petitioner did not speak directly with his lieutenant, although he had been repeatedly instructed to do so in order to request advance leave. Petitioner did not return to work after December 7, 1996. Despite the personnel rules, custom at the Jail, and prior direct orders by warning and disciplinary action letters, Petitioner submitted no leave slips directly to his superiors after December 6, 1996. Instead, he submitted them to his union shop steward and to a County Commissioner, although he had no reason to believe the Commissioner had any authority over Jail personnel matters. Respondent never authorized leave for Petitioner after December 13, 1996. Petitioner's extended absence without authorization was in violation of Respondent employer's long-standing "three day abandonment rule." There had been no word from Petitioner since December 31, 1996, so between January 17 and January 24, 1997, a "Notice of Disciplinary Action" was issued against Petitioner for [V]iolation of Alachua County Personnel Rules and Regulations, Chapter XIX, Section 3, c., Group III, Offense No. 8 'Absence of three (3) consecutive work days without proper authorization at which time the employee is considered to have abandoned the position and resigned from the County's employ.' The proposed discipline was termination, and again, Petitioner was offered the opportunity to contest the proposed final agency action at a hearing to be convened on February 18, 1997. (P-25) Sometime in January 1997, Petitioner saw a Master of Social Work, because Dr. Greene was on educational leave. Petitioner was so upset that the social worker advised him to focus on his medical problems. Apparently, Petitioner leapt to the conclusion that meant his doctors would handle all his leave-related problems. Sometime in January 1997, Petitioner had successful surgery on the growth between his legs. On January 27, 1997, Dr. Greene saw Petitioner in therapy and notified Mr. Tarbox in writing that, Mr. Lawrence James was seen for an appointment today in my office. He is apparently unable to continue working in what is perceived to be a hostile work environment at the jail. Compounded by his medical problems and what seems to be a lack of responsivity and accommodation by the administration, Mr. James' level of emotional distress has considerably increased since our last communication. It is strongly recommended that he take a leave of absence from the workplace until his condition is improved. He is scheduled to return next week for continued intervention. Thank you for your time and attention. (Emphasis supplied) (P-26) Dr. Greene testified that it was Petitioner's combined mental and physical circumstances which caused him to recommend the leave of absence. The January 24, 1997, Notice of Proposed Disciplinary Action was mailed to the last address Petitioner had given Respondent. On January 30, 1997, Petitioner's mother signed the certified mail receipt for the January 24, 1997, Notice of Proposed Disciplinary Action. Sometime thereafter, she delivered the Notice to Petitioner, who no longer lived with her. He refused to deal with it. Dr. Brient removed a suture from Petitioner's leg on February 4, 1997. This seems to have related to Petitioner's post-surgery release after removal of the growth between his legs. Petitioner did not then return to work. Because Respondent's principals had not recognized Petitioner's mother's name on the certified mail receipt, they caused the January 24, 1997, Notice of Proposed Disciplinary Action to be served on Petitioner by a Deputy Sheriff. Petitioner received this personal service on February 5, 1997, and told the Deputy that he would not deal with the Notice of Disciplinary Action, but his doctors would. Having been released as a result of his operation, there was no physical reason Petitioner could not have appeared for the February 18, 1997, hearing to present any opposition to his proposed termination based on "the three day abandonment rule." He did not appear. On February 21, 1997, Petitioner was mailed a "Notice of Dismissal," effective that date and signed by Harry Sands, a new Interim Director, for abandoning his position, in violation of the personnel regulations. The Notice of Dismissal gave Petitioner the option of appealing his termination through the employee appeal system or the collective bargaining grievance procedure. Petitioner did not take either appeal route. However, Petitioner did suggest to another Jail officer that those who had done this to him might need to get a pine box, i.e. coffin. The threat was not deemed worthy of prosecution by the State Attorney's Office. Petitioner testified, without corroboration, that he never received the promised re-orientation or re-training associated with re-instatement to his job. No witness gave any clear indication of what the re- orientation and re-training, as contemplated by the re- instatement agreement (see Finding of Fact 7) or as contemplated by Mr. Tarbox's July 17, 1996, letter (see Finding of Fact 29), was supposed to include. Lt. Stover did not remember any specific training he gave Petitioner, nor did Lt. Little, but Lt. Little testified that he was present when, before Petitioner first arrived on Lt. Stover's shift in July 1996, the Captain had ordered them both to "bring [Petitioner] up to speed." Petitioner suggested that failure to re-orient and retrain him evidenced Respondent's discrimination against him. His post-hearing proposal also asserts that due to Respondent's failure to train him in "new" personnel regulations, combined with Respondent's requirement that he adhere to those regulations which Jail custom did not normally follow, constituted disparate treatment and/or discrimination against him on the basis of his race or due to retaliation, and/or failure to accommodate his handicap. This perception is unpersuasive in light of the employer's repeated correspondence urging him to take the training, whatever that training might have been. Despite Mr. Tarbox's failure to reply to Petitioner's October 22, 1996, inquiry about training (See Finding of Fact 48), Petitioner's perception of discrimination was not established as fact. From the evidence as a whole, it is more probable that any failure to train Petitioner was the result of his request to change shifts, and thus, lieutenant-supervisors in July or his frequent absences. The record does not make clear whether the re-orientation/re-training requirement was unique to Respondent, who returned in 1996, or applied to all four of the returning African-American officers restored in 1994, but Petitioner did not demonstrate that any White/Caucasian or non-handicapped employee ever got any more re-orientation/re-training than he did. He did not establish that any White/Caucasian or non-handicapped employee ever got any more re-orientation/re-training than the other restored African-American officers, handicapped or otherwise. He also did not establish that any other restored African-American officer, handicapped or otherwise, received more re- orientation/re-training than he did. Moreover, contrary to Petitioner's testimony, Sergeant Babula testified credibly that he had at least instructed Petitioner with regard to the new payroll forms when Petitioner changed shifts in July 1996. Payroll forms include calculating hours worked and monies owed. Testimony and business records also show Petitioner had five hours of drug policy training. (See Finding of fact 72). Also, Respondent did not discipline Petitioner for his failure to request leave of specific personnel as required by the only new personnel regulation, until after Petitioner had been instructed in writing to do so. These written instructions may not have constituted complete "re-orientation" or "re- training," but they were direct orders sufficient to instruct Petitioner what was expected of him. (See Findings of Fact 16, 29, 43, 46-47, 57-59). Lastly, based on Petitioner's testimony that even if he had known he was required by a new regulation to request leave from his lieutenant-supervisor he would not have followed that regulation but instead would have considered himself bound by his union contract and by the custom of asking for leave of anyone on his shift at the Jail, it appears that any failure of Respondent to specifically "train" Petitioner concerning new personnel regulations had no effect on his subsequent failure to comply with the employer's expectations concerning its leave policy. Petitioner had admitted in evidence a certified copy of a "Second Superceding Indictment" issued by a federal Grand Jury on February 27, 2001. It was not established that this was the same Grand Jury before which Petitioner testified in 1996. (See Finding of Fact 47). The indictment (which is only a charging document, not a conviction) named Nate Caldwell, Respondent's former Director; Samuel Krider, Respondent's former Assistant Director; Garry M. Brown, a former Captain with Respondent; and Charles Scott Simmons, a former Lieutenant with Respondent, for conspiracy to obstruct justice by violating 18 USC Section 1503, by hindering the court and jury in a federal civil rights action brought by Mr. Dickerson against the Alachua County Board of County Commissioners. Mr. Dickerson's federal case arose out of Mr. Dickerson's demotion in rank with Petitioner in connection with the 1994 escape. It was not established that any of the indicted officials held office during the time material to Petitioner's instant case, 1996- 1997, or that any of them had anything to do with Petitioner's 1996 leave disputes or 1997 termination. Indeed, it was established that Sands or Tarbox was Interim Director at all times material. The indictment mentions Petitioner and Captain King, a superior of Petitioner at all times material, but neither Petitioner nor Captain King were indicted. Despite the lack of clarity of Petitioner's and Mr. Dickerson's testimony, the undersigned infers from their testimony and the indictment that Petitioner testified concerning the same matters before the Grand Jury in 1996 and that prior to 1996 Petitioner had been a witness in Mr. Dickerson's federal discrimination case against the County Commissioners. However, Petitioner testified that his retaliation allegation herein is not based on his 1996 testimony before the Grand Jury. Rather, Petitioner asserted at hearing that he believed he had been retaliated against by his superiors in 1996-1997 for speaking at 1993 meetings of the County Commission concerning structural and staffing problems at the Jail, and otherwise he did not know why he had been retaliated against. (TR-Vol. I pp. 229-233).
Recommendation Upon 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 Petitioner has not proven discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 18th day of September, 2001.
The Issue Whether Respondent's employment should be terminated "for being absent without approved leave," as recommended in the Superintendent of Schools of the School District of Palm Beach County's Petition for Involuntary Resignation.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the School District. Systemwide testing programs in the School District are coordinated by the School District's Department of Research, Evaluation, and Accountability (DREA). At all times material to the instant case, Marc Baron headed DREA. DREA operates a test distribution center. Cherie Boone is now, and was at all times material to the instant case, in charge of the DREA test distribution center. Ms. Boone supervises four employees. As their supervisor, she is "responsible for [among other things, their] time and attendance." Respondent is employed as a materials handling technician with the School District. At all times material to the instant case, he was assigned to work in the DREA test distribution center under the direct supervision of Ms. Boone. As a materials handling technician employed by the School District, Respondent is a member of a collective bargaining unit represented by the National Conference of Firemen & Oilers, Local 1227 (NCF&O) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School District and NCF&O (NCF&O Contract). Article 7 of the NCF&O Contract discusses "employees['] contractual rights." It provides as follows: SECTION 1. Probationary Employees All newly hired or rehired employees may be subject to a probationary period of ninety (90) workdays. Employees who have not completed such period of employment may be discharged without recourse. Probationary employees shall not be eligible for any type of leave except accrued sick leave, annual leave, or short term unpaid leave (due to illness) not to exceed five (5) days. SECTION 2. Permanent Employees Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the NFC&O Contract addresses the subject of "[m]anagement [r]ights." It provides as follows: NCF&O and its members recognize the responsibility of the District to operate and manage its affairs in all respects in accordance with its responsibilities as established by law and as delegated by the State Board of Education; and the powers of authority which the District has not officially agreed to share by this agreement, are retained by the District. It is the right of the District to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the District to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons, provided, however, that the exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequences of violating the terms and conditions of this agreement in force. The District has the sole authority to determine the purpose and mission and the amount of the budget to be adopted by the School Board. The District and NCF&O agree that the District has and retains unaltered, its legal right to select, assign, reassign, or relocate any of its employees, and to carry out its mission under the law and State Board of Education Regulations, unless otherwise specifically enumerated herein. Except to the extent it has been done prior to May 26, 1998, no bargaining unit work which would result in the loss of jobs by members of the bargaining unit, shall be contracted out without prior consultation with the Union. It is understood that changes under this Article may not be arbitrary and capricious, and it is agreed that the District has those rights which are enumerated within Florida Statute 447; however, nothing herein shall relieve the parties of their ability to request impact bargaining. Among the "rules and procedures" that the School District, through the School Board, has established in exercising its "[m]anagement [r]ights" are School Board Directive 3.27 and School Board Policy 6Gx50-3.80, which provide, in pertinent part, as follows: School Board Directive 3.27 * * * Resignations. If employees desire to be released from their employment contract the following procedures are to be followed: * * * c. When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employee stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. * * * Suspension/Termination. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes.[2] * * * Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement. * * * 6. When a recommendation for suspension and termination is made, the procedures listed in School Board Policy 3.27 shall be followed. * * * School Board Policy 6Gx50-3.80 A leave of absence is permission granted by the Board, or allowed under its adopted policies, for an employee to be absent from duty for specified periods of time with the right of returning to employment on the expiration of the leave. All absences of School Board employees from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance by the School Board and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. No leave except military leave shall be granted for a period greater than one (1) year. A new leave application may be filed and granted at the expiration of leave, but automatic renewals of leave shall not be allowed. Leave may be with or without pay and provided by law, rules of the State Board of Education, School Board policy, and negotiated contracts. If the terms of the collective bargaining agreement differ from this Policy, the language of the employee's agreement will take precedence. The following types of leave are available for School District employees: Leave for personal reasons Annual leave for 12-month personnel Sick leave Catastrophic leave Injury or illness in-line-of-duty leave Sabbatical leave Temporary military leave Regular military service leave Professional leave and extended professional leave Charter school leave Voluntary/extended military leave Leave of absence for the purpose of campaigning for political office Personal leave including maternity/ recovery and child care Paid Leaves * * * c. Sick Leave * * * iv. An employee requiring more than thirty (30) working days of paid leave for recovery may be required to submit medical evidence at reasonable intervals supporting the need for additional leave. * * * Sick leave claims shall be honored as submitted by the employee for personal illness, as well as illness or death of father, mother, brother, sister, husband, wife, child or other close relative or member of the employee's own household. Sick leave without pay may be granted for employees who have used all accumulated sick leave, but who would otherwise qualify for sick leave. The Superintendent may require a doctor's statement of verification of illness. A request to the Superintendent for a verification of claim may be initiated by the principal or supervisor. * * * Unpaid Leaves * * * e. Personal Leave -- An employee requesting short-term or long-term personal leave shall make written application to the supervisor, stating reasons for such leave. The Board shall satisfy itself in terms of the need of the requested leave. Personal leave may be used to extend a leave of absence due to sickness when that sickness has extended beyond all compensable leave for the duration of up to one (1) calendar year when supported by doctor's statements verifying the necessity of the extended leave. An employee requesting return to duty who has served efficiently and exhibited those qualities called for in the position held prior to such leave will be given every consideration for reemployment provided the conditions of employment have been met and the request is supported by a doctor's statement certifying that his physical condition is satisfactory to return to normal duties. * * * Article 17 of the NCF&O Contract, as noted in Article 7 of the contract, deals with the "[d]iscipline of [e]mployees." It provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee’s personnel file and shall not be used to the further detriment of the employee, unless there is another reasonably related act by that same employee within a twenty-four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee’s personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension without pay shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee’s personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable laws. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Article 18 of the NCF&O Contract describes the grievance procedure available to bargaining unit members who allege a "misapplication or misinterpretation of the agreement." The described procedure consists of an "informal level" and four formal "levels," the final one being "arbitration before an impartial arbitrator, using the Federal Mediation and Conciliation Services." Pursuant to Section 4B. of Article 18, "if NCF&O decides to withdraw its support of an alleged grievance, the individual may continue to process the claim on his/her own, so long as all costs are borne by that individual"; however, according to Section 4E. of Article 18, "[a]grievance, once [actually] withdrawn, may not be reopened without the mutual written agreement between the [School District] and [the] NCF&O." "[L]eave [w]ithout [p]ay" is the subject of Article 25 of the NCF&O Contract, which provides as follows: SECTION 1. Personal Leave of Absence Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent. An employee granted an unpaid leave of absence shall be returned to his/her former classification if the leave is less than ninety (90) days, notwithstanding the layoff provisions contained in this agreement. An employee granted a leave of absence and who wishes to return before the leave period has expired, may submit a request to return to the principal/department head. An employee granted a leave of absence in excess of ninety (90) days will be permitted to return to work provided there is an opening in the same job classification in the work unit. If the former position is not available, the employee, upon written request, shall be listed as an eligible applicant for a period of six (6) months. Group Life and Hospitalization Insurance coverage may be continued for a period equal to the authorized leave of absence, provided full premium payments, including the Board's payment, are kept current by the employee. SECTION 2. Return from Leave Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal.[3] This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent.4 Section 2 of Article 35 of NCF&O Contract protects employees from "[h]arassment." It provides as follows: No employee shall be subjected to or be part of: Unwelcome sexual advances, requests for sexual favors, offensive, lewd or suggestive comments. Also includes the creation of a hostile, intimidating, or offensive work environment. Verbal or physical abuse is submitted to by an employee. An adverse decision is made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. Verbal or physical abuse. An adverse decision shall not be made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. There came a time when Respondent claimed, in a Level One grievance filed under the NCF&O Contract, that he was a victim, at the hands of Ms. Boone, of the "[h]arassment" proscribed by Section 2 of Article 35 of the contract. The grievance was filed (with the support of NCF&O) on or about April 8, 2004, several weeks following an incident in which Ms. Boone "yell[ed]" at Respondent for returning "a little bit late[]" from a delivery run. It contained the following "[g]rievance [s]tatement" and description of the "[r]elief [s]ought": Grievance Statement: (Include Date of Occurrence) Mr. Ellis fe[e]ls that he is working in a hostile work environment. He had meeting with the Dept. Head to express his feelings. On March 31, the employee was issued a written reprimand when there has never been any discipline for the employee. Relief Sought: The reprimand is withdrawn from all personnel files. All intimidation of the employee to cease immediately. Ms. Boone, on behalf of the School District, responded to the grievance by providing Respondent with the following written "disposition": After careful consideration of all available information, it has been determined that there has not been a violation, misapplication, or misinterpretation of the collective bargaining procedures. The grievance was not pursued beyond Level One. Since March 16, 2004, Respondent had not been reporting to work, notwithstanding that he had not received authorization to be absent. On or about April 5, 2004, Respondent submitted a request for leave of absence without pay for the period from April 5, 2004, to July 5, 2004. The type of leave without pay he requested was personal leave. By letter dated April 8, 2004, Mr. Baron advised Respondent that Respondent's request was being denied. In his letter, Mr. Baron wrote: You were absent without approved leave on April 5, 2004, April 6, 2004, and April 8, 2004. On Monday, April 5, 2004, you reported your intended absences and requested personal leave of absence starting April 5, 2004 through July 5, 2004. Pursuant to Article 25, Section 1, of the Agreement between The School District of Palm Beach County and National Conference of Firem[e]n & Oilers, "Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent." Your request for personal unpaid leave is denied. You are directed to return to work on Monday, April 12, 2004. Continued unapproved absences will result in further disciplinary action up to and including termination. Respondent did not return to work on April 12, 2004, as directed. The matter of Respondent's unauthorized absences was then "turn[ed] . . . over to [the School District's] personnel [office]" to "deal with." The personnel office decided to ask the School Board to terminate Respondent's employment for his having been absent without authorization. Before the School Board took any action, Respondent submitted another request for leave of absence without pay. The type of leave without pay he requested this time was sick leave. On the request form, Respondent indicated that he wanted the leave period to begin on April 16, 2004, "but there was no end date" written in anywhere on the form. Without an "end date," the form could not be processed. Sherry Kleinman, a School District analyst assigned to the personnel office (whose job duties include processing "all the leaves of absence for School [District] employees"), telephoned Respondent and "asked him what end date he wanted" her to place on the form for him. During their telephone conversation, Ms. Kleinman and Respondent "agreed upon" a May 17, 2004, "end date." Ms. Kleinman inserted this "end date" in the appropriate space on the form and then completed processing Respondent's leave request. Respondent was granted leave without pay for the period starting April 16, 2004, and ending May 17, 2004. Moreover, the personnel office "pulled" its recommendation that the School Board terminate Respondent for his having been absent without authorization. Respondent did not report to work at any time following the expiration of his authorized leave on May 17, 2004, nor did he seek an extension of this leave. There has been no showing made that there were extenuating circumstances present preventing Respondent's timely return to work; nor has it been shown that the issue of whether such extenuating circumstances existed has ever been presented to the Superintendent for determination. Personnel office staff attempted to reach Respondent by telephone to encourage him to seek an extension of the authorized leave that had expired. These efforts were unsuccessful. Upon being advised of the situation by Ms. Kleinman, NCF&O business agent Carolyn Killings, who had helped Respondent in filing his "[h]arassment" grievance, offered to try to contact Respondent, but she too was unable to "reach him." By letter dated June 14, 2004, Ernie Camerino, the assistant director of the personnel office, advised Respondent of the following: You were recently notified by your supervisor of your failure to return to work. As a result of such action, Personnel is currently processing your involuntary resignation from employment with the School District. Please be advised that I will recommend at the July 21, 2004 meeting of the School Board of Palm Beach County, Florida, your involuntary resignation. Subsequent to the July 21, 2004 Board meeting you will have fifteen (15) days to file an appeal under Section 120.[6]8, Florida Statutes. Unless a timely request for an administrative hearing (DOAH) is made within fifteen (15) days stated herein pursuant to Section 120.569 and 120.57, Florida Statutes the District will consider this matter closed. This action is taken in accordance with Section 1001.42 and 1001.51, Florida Statutes. Failure to timely request an administrative hearing shall waive all rights to request a DOAH hearing on such matters and shall be subject only to appeal rights under Section 120.[6]8, Florida Statutes. You have a choice of filing a grievance or requesting a hearing before the Division of Administrative Hearings (DOAH). Questions regarding the appeals process should be referred to the District's Legal Department. If you find this letter inconsistent with the action taken above, you may contact Mr. Camerino immediately at . . . to resolve this matter prior to School Board Action. By letter dated July 8, 2004, Respondent informed the School District's legal department that he was "requesting an appeal" of Mr. Camerino's "involuntary resignation" recommendation. On August 23, 2004, the same day the Superintendent filed his Petition for Involuntary Resignation recommending that the School Board terminate Respondent's employment, the School District referred Respondent's appeal to DOAH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order terminating Respondent's employment based on his failure to return to work following the expiration of his leave without pay on May 17, 2004. DONE AND ENTERED this 14th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2005.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has just cause to terminate the employment of the Respondent.
Findings Of Fact The Petitioner is the School Board of Lake County, Florida (Board)(Petitioner). It is charged with operating and managing the public school system in Lake County, Florida, otherwise known as the Lake County School District. The Respondent, at times pertinent hereto, was employed by the Board as a school guidance counselor at Sawgrass Elementary School. Her principal was Rhonda Hunt. During the 2005-2006 school year, the Respondent missed 71 days from her job. In the 2006-2007 year, she missed 97 days. In the 2007-2008 school year, the Respondent missed 87 days from work. The contract for a guidance counselor requires that they work for 221 days per school year. During these times, especially in the 2007-2008 school year, the Respondent had been making repeated requests for leave. Ms. Hunt, her principal, became concerned and in May of 2008 reported the situation about extensive absences, and leave requests, to Ms. Rebecca Nelsen, the Board's Supervisor of Compensation, Benefits and Employee Relations. In the 2007-2008 school year, when Ms. Hunt brought the issue to Ms. Nelsen's attention, the Respondent had missed work the number of days found above, which represented all the days in the school year from February 13th through the end of the school year. In the previous year, she had missed work from the middle of January through the end of the school year. Ms. Nelsen prepared a memo to Deke DeLoach, the Board's Chief of Human Resources, apprising him of the situation regarding the Respondent's absences. She explained to him the situation involving the excessive absences over a 5-year period. She explained to Mr. DeLoach that when an employee has been on extended unpaid leave that, according to Board policy 6.50, her return to employment is dependant upon a position being available. Therefore, while an individual is on extended leave, which is approved, their position becomes available to be filled at the decision of an individual school administrator. Moreover, unpaid leave, the status applicable to the Respondent's situation, must be approved in advance. An employee may not go off-duty on unpaid leave and then get approval for it at a later time. Approval must be requested in advance. A formal request must be made to the Superintendent, for the Superintendent's recommendation to the Board. Extended Illness Leave is a leave category that is required to be approved by the Board as well. Ms. Nelsen therefore explained to Mr. DeLoach that the Respondent had been on extended unpaid leave and, according to the above-referenced Board policy, her return to employment was dependent upon a position being available. Employees are required to have approval for some form of leave before they take leave or miss time from work. If an employee does not have approval for some form of leave and does not come to work, then under Board policy they are deemed to be absent without leave. If that is the situation, the employee can be terminated under Board policy. The School Board must have a recommendation from the Superintendent in order to be able to act on any sort of leave request. Under Board policies, an Extended Illness Leave is required to be approved by the Board. The school fiscal year ends June 30th. July 1, 2008, therefore, was the beginning of the new fiscal year for the 2008-2009 school year. The regular school session then began near the end of August 2008. Ms. Nelsen wrote to Ms. Chavous on August 19, 2008, explaining to her that she had been on unpaid sick leave numerous days, and giving her options to consider. Ms. Nelsen informed her that she must report to work or be considered absent without approved leave, that she could explain to her supervisor any accommodations that she may need, or that she could request Extended Illness Leave. That communication, from Ms. Nelsen to Ms. Chavous, references a July 29, 2008, request for sick leave. Ms. Chavous completed the July 29, 2008, request for sick leave on a Request for Leave of Absence form, which is the form required to be completed by employees who are requesting any kind of leave from the School Board. The July 29, 2008, leave form depicted a request for leave from August 4, 2008, through August 19, 2008. The reason for the leave requested was indicated as "Illness of self.” The Respondent did not have any sick leave available to her at that time. In the 2008-2009, school year, the Respondent was not eligible for leave under the Family Medical Leave Act. This was because she had not worked enough days in order to trigger eligibility under that law. This leave request was denied because the Respondent was on unpaid sick leave the prior year, had missed 87 days, and had never offered an explanation for her need to use sick leave. Therefore, the Board had no basis on which to approve the additional leave request and the Respondent's approved leave ended June 30, 2008. Any leave that the Respondent would have received for any extended illness would have been for the previous school year which was over at the end of the fiscal year, June 30, 2008. Ms. Nelsen gave the Respondent two options in her August 19, 2008, letter: To report to work or be considered absent without approved leave, or To submit a leave request form asking for extended illness leave for the remainder of the year. On August 28, 2008, a request was faxed from the Respondent seeking extended illness leave. The attached doctor's note did not explain the nature of the medical situation or condition, in terms of providing justification for the leave requested. The Respondent submitted a leave request form with that August 28, 2008, request. It did not confirm that she was asking for extended illness leave for the school year. Instead she requested leave from August 4, 2008, until October 30, 2008. Since School Board policy required the Respondent, in this situation, to request leave for the remainder of the school year, Ms. Nelsen sent an e-mail to the Respondent telling her that she had no available sick leave to use and again telling her that she had the option to either report to work or to request an extended illness leave for the remainder of the year. That communication was sent on August 29, 2008, the day after the Respondent faxed the form requesting leave through October. The Respondent then sent Ms. Nelsen another leave request form in response to the August 29, 2008, e-mail. It again requested leave from August 4, 2008, through October 30, 2008. On September 9, 2008, a letter was sent from the Superintendent to the Respondent, explaining that the Respondent had not reported to work and that she had not requested extended illness leave. Consequently she was informed that she was now considered “absent without approved leave” and would be recommended to the School Board for termination of employment. When the Superintendent sent the letter to the Respondent, on September 9, 2008, the Respondent was not on approved leave. She was absent without leave under the terms of the School Board policy. Pursuant to that policy she was therefore subject to being terminated. Ms. Nelsen received three leave request forms from the Respondent, none of which requested leave for the remainder of the school year, and none of which gave an explanation for the basis of the medical condition. The Respondent's response to these facts was her statement to the effect that "[I]t was just always told to me that you can't request for more leave than what your doctor has put on the form. So, therefore, that's why I put the dates there." She also acknowledged that sometimes she does not remember some things or doesn't respond as fast as she should. Therefore she simply stated that she believed, in effect, that she had submitted everything that she could and had explained her situation to the best of her ability at the time. The collective bargaining agreement between the Lake County School District and the Lake County Education Association includes the position of guidance counselor. That contract references the Board policy which makes it a terminable offense to be absent without leave. The recommendation to the Board, prior to the Respondent making a Request for Hearing, was that she be terminated for being absent without leave. The Respondent's prior leave had expired at the end of the 2007-2008 school year. When the first day of school started in the current school year of 2008-2009, the Respondent did not report to work. The Respondent probably would have been unable to work because of her illness before January 2009. She would therefore have missed all of August, September, October, November, and December.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED that a Final Order be entered by the Lake County School Board finding that the employment of the Respondent, Latonya Chavous, be terminated for just cause. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2009. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Latonya Chavous 136 Desiree Aurora Street Winter Garden, Florida 34787 Dr. Susan Moxley, Superintendent Lake County Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times pertinent to the issues herein, Respondent, Lykes Brothers, Inc. operated a meat packing plant in Plant City, Florida. Hennis Washington, III was employed by Respondent at that plant as a utility worker. Petitioner, Hillsborough County, through its Human Resources and Equal Opportunity Department, had the authority to investigate and administratively enforce County Ordinances relative to unlawful discrimination in employment. Respondent is 5'1/2" tall and weighs about 114 pounds, much the same as at the time in issue. He is a power lifter and claims to be able to lift 405 pounds in a dead lift. He was employed at the Respondent's plant from July, 1991 to May, 1993, when he was terminated in the action which is the subject of this hearing. On May 24, 1993, while in the performance of his duties, Mr. Washington was carrying a stack of empty boxes from one place to another through the plant's bacon curing department. The stack of boxes he was carrying extended above his head and as a result he was unable to see in front of him. As he proceeded down the aisle, he ran into some resistance which prevented him from going further. He changed direction to the side where he could see, and which, he believed, was clear, and again ran into resistance which, this time, caused him to drop the boxes. After the boxes fell, and he could see in front of him, he observed Mr. Romero, a sanitation worker, in front of him, smiling. There is some question whether or not Mr. Romero took a step toward Mr. Washington. At hearing, Mr. Washington said he did and that he felt threatened by Mr. Romero's advance, though at his grievance hearing he did not indicate that. In response, howevever, Mr. Washington moved toward Mr. Romero, a man approximately 5'8" tall and weighing approximately 175 pounds, picked him up, and dropped him on the floor. As a result of that, Mr. Romero claimed to have injured his back and reported to the medical office by which he was released from duty for the evening. After this action, Mr. Washington was terminated from employment with the company. He is of the opinion it was because of his race, but admits he was advised by his supervisor, Mr. Freeman, it was because it was felt he had over- reacted to the situation with Mr. Romero. Nonetheless, an employee action request initiated by Mr. Freeman, dated May 24, 1993 reflected that Mr. Washington was administratively terminated. Administrative termination deals with unauthorized absences, according to the company's Employee Handbook. Mr. Freeman, himself African-American, was not present at the time of the incident, but was informed of it shortly thereafter, and called Mr. Washington to his office. Mr. Washington admitting picking up Mr. Romero, whom he did not previously know, and thereafter dropping him to the floor. Mr. Freeman, after finding out what happened, referred the matter to Mr. Harris, the employee relations manager, who is also African-American. Mr. Freeman did not interview Mr. Romero. He prepared the administrative termination notice upon direction of his supervisors. He claims the termination was based on Mr. Washington's fighting and not on the basis of his race. Mr. Harris, over a period of the next several days, conducted his independent investigation into the incident which investigation included speaking with Mr. Washington, Mr. Romero, and several other witnesses. During this period, both Mr. Washington and Mr. Romero were suspended. Mr. Harris' investigation confirmed there had been an incident, but he could find no evidence that Mr. Romero had pushed the boxes Mr. Washington was carrying. It was for that reason that Mr. Romero was not disciplined. The termination of Mr. Washington was predicated upon the fact that he had been engaged in a fight with another employee. The Respondent's personnel rules indicate that fighting, as opposed to mere horseplay, is a Class I infraction, the punishment for which can include dismissal. It includes the throwing of punches, the use of weapons, and the threat of injury. Horseplay, on the other hand, usually amounts to no more than pushing, tugging, and actions which are not likely to result in injury. In the instant case, Mr. Washington's actions constituted a direct battery of Mr. Romero which resulted in injury. It was, therefore, properly considered fighting. Mr. Harris concluded that Mr. Washington had reacted to the situation improperly. If, as he claimed, Mr. Washington felt he was being harrassed by Mr. Romero and Mr. Barbosa, who was with Mr. Romero at the time of the incident, he should have reported the matter to his supervisor rather than taking matters into his own hands. Employees are given an Employee Handbook when they begin employment with the company, and they are taught, in a four hour orientation course given to all employees, to back off from incidents of this nature - not to fight. Because he felt Mr. Washington had overreacted, Mr. Harris recommended termination, even though a check of both employees' personnel records indicated neither had any previous incidents. At the time of the incident, Lykes had approximtely 750 production maintenance employees, (Mr. Washington's category). Of this number, between 30 and 35 percent were African-American, 15 percent were Hispanic, 5 percent were other minorities, and between 45 and 50 percent white. Mr. Hampton, Lykes' Vice-President for Employee Relations, was made aware of the situation involving Mr. Washington by Mr. Harris, who recommended termination. Mr. Hampton agreed with this recommendation because Mr Washington had thrown Mr. Romero down and injured him. The recommendation for termination was not based on race and was consistent with discipline taken in prior incidents. Specifically, Mr. Hampton referred to a situation occuring not long before the instant case in which two white employees were initially terminated for an altercation they had. In that case, the investigation showed the employees had been fighting and both initially were fired. However, the union filed a grievance. A hearing was held and the decision to terminate was upheld. Thereupon, the union indicated its intent to take the matter to arbitration, and as a result of a meeting held on that issue, it was determined that the incident was more horseplay than fighting and there was little likelihood the company could prevail at arbitration. That conclusion was based on the fact there were no blows struck, there was no injury, and the incident stopped immediately upon the arrival of the supervisor. The employees thereafter were disciplined and reinstated. Mr. Washington also filed a grievance regarding his case. A hearing was held persuant to the union contract. Based on the information presented at the hearing, the grievance committee, made up of two African-American employees and one white employee, concluded there was insufficient evidence to take the issue to arbitration. This committee included the same individuals who heard the previously noted grievance, regarding the white employees. Mr. Washington asserts that because he had been assigned to a position previously held by Mr. Romero, who, he claimed, was demoted from utility to sanitation, Mr. Romero was angry with him and was looking for trouble. The evidence of record indicates that in March, 1993, Mr. Romero was transferred to another position on a different shift from that he was then occupying. The evidence also indicates the position to which Mr. Washington was assigned cannot be considered to be Mr. Romero's old position. Utility and sanitation jobs are, purportedly, on a par. Mr. Washington was assigned to a job identical to that which Mr. Romero had vacated, but on a different shift. Mr. Romero would have had no reason to think Mr. Washington took his job any more than any other utility employee. Further, there is no evidence, save the claim by Mr. Washington, that Mr. Romero acted in a threatening manner. Mr. Glisson, a witness to the incident, indicated the two "tangled". but there was no indication of aggressiveness by Mr. Romero. Taken together, while Washington may have believed Mr. Romero was threatening him, there was insufficient provocation for him to react in the way he did. Under the terms of the Employee Handbook, he should have retreated, and his actions constituted fighting which is grounds for discipline. It is impossible to conclude, from the evidence of record, that the termination of Mr. Washington resulted from anything other than a reaction to his demonstrated misconduct. Only one question remains unanswered. On June 1, 1993, an Employee Action Request was prepared, purporting to administratively terminate Mr. Washington because of fighting on the job and threats of violence. Counsel for the County claims this is an alteration of that action form prepared on May 24, 1993. Both exhibits were photo copies and it is impossible to tell, with certainty, that an alteration occurred. However, a close comparison of the copies leads to the conclusion that the latter dated form is, in reality, an alteration of the former with the dates changed, and an addition of fighting and threats with a direction to remove Mr. Washington from the payroll. No evidence was presented regarding a reason for the alteration, and nothing improper can be legitimately inferred therefrom. Counsel representing Mr. Washington makes reference to the opinion of an Appeals Referee of the Florida Department of Labor and Employment Security, dated July 30, 1993, which, in reversing the determination of the claims examiner in Mr. Washington's unemployment compensation claim, determines that he was not the aggressor in the incident that led to his discharge, and that his involvment was merely for self-protection. The Referee also finds that Mr. Washington's actions could not be viewed as misconduct connected with his work, and he is, therefore, not disqualified for unemployment compensation benefits. The Referee concludes, as a matter of law, that inefficiency, unsatisfactory conduct, and/or good faith errors in judgement or discretion are not to be deemed "misconduct" "within the meaning of the statute, (Chapter 443, Florida Statutes). The finding of the Appeals Referee is not binding on the undersigned in this action. Mr. Washington was deemed by his employers to have, by fighting, overreacted in the confrontation with Mr. Romero. Overreaction can be equated with poor judgement which, in an industry as hazardous as is meat packing, may well serve as appropriate grounds for discharge even if not classified as misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Determination of No Cause be entered by the Hillsborough Human Relations Board concerning the termination from employment of Hennis Washington, III by the Respondent, Lykes Brothers, Inc. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. 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: Accepted and incorporated herein. - 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorported herein. Second sentence rejected as a being more a Conclusion of Law than a Finding of Fact. - 12. Accepted and incorporated herein. Irrelevant. Accepted. Accepted. - 17. Accepted. 18. Accepted. FOR THE RESPONDENT: 1. 2. & 3. 4. 5. & 6. Accepted Accepted Accepted Accepted and and and and incorporated incorporated incorporated incorporated herein. herein. herein. herein. 7. - 9. Accepted. 10. & 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. COPIES FURNISHED: Catherine P. Teti, Esquire Office of the County Attorney Hillsborough County P.O. Box 1110 Tampa, Florida 33601 Michael D. Malfitano, Esquire Malfitano & Campbell, P.A. 101 E. Kennedy Boulevard Suite 1080 P.O. Box 1840 Tampa, Florida 33601-1840 Daniel A. Kleman County Administrator Post Office Box 1110 Tampa, Florida 33601
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 Petitioner was employed by Respondent, Seamless, at its Ocala, Florida plant from January 9, 1985 to June 21, 1985. At the time she was employed, she was furnished an employee handbook which outlines, among other things, the procedures for applying for and receiving leaves of absences. Mrs. Lanham had also been employed by Becton-Dickinson, a company owned by Dart & Kraft, Inc., the company which owns Seamless as well. Becton-Dickinson was the forerunner to the Seamless operation at the same plant site. During this previous period of employment, Mrs. Lanham applied for a four day leave of absence extending from March 7, 1984 through March 10, 1984 for medical reasons. The form application for a leave of absence prepared by the Petitioner and bearing her signature as well as those of the additional individuals in her chain of supervision reflects that the form was submitted subsequent to Mrs. Lanham's return from leave. Mrs. Lanham contends that she was discriminated against because of a physical handicap (rheumatoid arthritis) yet the employment application she executed on November 1, 1984, some two months before she was hired and approximately 7 months prior to the leave of absence which resulted in her termination, reflected that she did not have any physical condition which would limit her ability to perform the job applied for. Mrs. Lanham took an administrative leave on June 10, 1985 and remained absent until June 21, 1985. On June 10, Mrs. Lanham's husband delivered a disability certificate signed that date by Mrs. Lanham's physician, Dr. Panzer, to Mrs. Lanham's supervisor, Mrs. Kibler. This disability certificate was in turn transmitted to Mrs. Reese, the personnel specialist, by Mrs. Kibler. On June 12, Mrs. Reese talked by telephone with Mr. Lanham, advising him that Mrs. Lanham had to come in to fill out a form for a leave of absence. Later in the day, Mr. Lanham called back to say that Petitioner would be in the next morning. Mrs. Lanham did, in fact, come in on June 13. In a meeting in Mrs. Reese's office, Mrs. Reese gave Mrs. Lanham a form for a leave of absence request. At the time, Mrs. Lanham objected to coming in to fill out the form indicating she did not think it was necessary because she had a doctor's statement which she understood would make a leave of absence request unnecessary. In response, Mrs. Reese explained that the leave of absence request was necessary because the doctor's statement, previously submitted on June 10, showed no diagnosis and was, therefore, inadequate. In response Mrs. Lanham indicated she would not fill out or sign any form without first taking it to her attorney. The completed leave of absence form was received by Mrs. Reese that same day, after lunch, when Petitioner's husband brought it in and dropped it off at the reception desk. This leave of absence form is dated by Mrs. Lanham on June 12, 1985, and indicates in the explanation portion thereof that the reason for the requested leave of absence is "job related injury." When Mrs. Reese saw this entry, she immediately called Mrs. Lanham's home leaving word for Mrs. Lanham to return the call. This call was not returned, and, later in the day, Mrs. Reese again called Mrs. Lanham, this time leaving word for her to report to the Oakbrook Clinic for an examination of the job related injury the first thing the next day. Mrs. Lanham at no time reported to the clinic for the examination as directed either that day or any time thereafter. Repeated phone calls to the Lanham residence failed to result in Mrs. Lanham being reached. In addition, repeated requests by mail, telegram, and phone for her to come into the office and explain her absence were met with no response. In fact, Mrs. Lanham was on vacation during a substantial portion of the time of her absence a vacation which, she contends, her doctor advised her to take. There was no independent evidence in any form of the nature of Mrs. Lanham's condition or her doctor's prescribed course of treatment for it. Since, therefore, her leave of absence had not been approved, it was thereafter determined that she had abandoned her job and on June 21, 1985, she was notified by certified mail that a determination was made that she had voluntarily resigned her position with the company. Mrs. Lanham contends that she felt it was perfectly all right for her to wait until she returned from her leave of absence to submit the leave of absence request basing this conclusion on the fact that when she worked for Becton-Dickinson, some two years previously, that was the procedure followed. Though that might have been the procedure at the earlier time with the other company, it is clear that that was not the procedure followed by Seamless at the time in question and Mrs. Lanham's reliance on the earlier procedure, especially in light of the repeated contacts with her and the additional attempted contacts, result in the clear conclusion that she declined to comply with the company rules at her own peril. Mrs. Lanham indicates that the reason the diagnosis was not in the initial disability certificate submitted by her was that the lab work had not been completed at the time it was submitted and she failed to go to Oakbrook Clinic notwithstanding the repeated requests by Mrs. Reese because she understood that it was up to her to go at her convenience. She intended to go to Oakbrook when she got back from her vacation. 9. Subsequent to all the above, Mrs. Lanham settled a Workmen's Compensation claim in her case for some financial award. The terms of the settlement are not relevant to the issues herein. It is evident, however, that the award was based on compromise rather than liability and no firm determination of compensability was made. Mrs. Lanham was absent for three days prior to submitting the absence request form for this June 1985 absence. When the form was submitted, it contained information relating to a job related injury, which entry was placed there by Mrs. Lanham's attorney. This raised legitimate questions in the Respondent's personnel officials' minds to require further contact with Petitioner since there had been no previous notification of injury. By this time, however, Petitioner had either gone on vacation or for some other reason, refused to respond to the requests of the personnel people to either come into the plant or go to the clinic for evaluation. Mrs. Lanham may have had a valid disability, but it was not the disability for which she was terminated. It was the extended unexcused or unapproved absence from June 13 through June 21, a period of more than three days, which, under the guidelines set out in the employee manual, resulted in a legitimate conclusion by management that Petitioner had abandoned her position and it is clear that her termination was based on that rather than any reference to her handicap. All other information relating to Mrs. Lanham's complaints about job working conditions and her request to be reassigned have little if any bearing on the issue of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition for Relief filed by Gladys L. Lanham be denied. RECOMMENDED this 22nd day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1986. COPIES FURNISHED: Gladys L. Lanham. 4631 SW 87th Terrace Ocala, FL 32674 John L. Johnson, Esq. Labor Counsel Dart & Kraft, Inc. 211 Sanders Rd. Northbrook, IL 60062 Susan K. McKenna, Esq. 57 W. Pine Street Suite 202 Orlando, FL 32801 Betsy Howard Clerk of the Commission on Human Relations 325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303 Aurelio Durana General Counsel Commission on Human Relations 325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Suite 240 - Building F Tallahassee, FL 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by Respondent in this case. 1. Incorporated in finding of fact 1. 2. Incorporated in finding of fact 1 and 2. 3-4. Incorporated in finding of fact 4. 5. Incorporated in finding of fact 2 and 4. 6. Incorporated in finding of fact 5. 7. Incorporated in finding of fact 1. 8. Treated in finding of fact 9. 9-11. Incorporated in finding of fact 6. 12. Incorporated in finding of fact 6 and 7. 13. Incorporated in finding of fact 6. 14. Incorporated in finding of fact 10 and 11. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS GLADYS L. LANHAM, EEOC Case No. n/a Petitioner, FCHR Case No. 85-3099 DOAH Case No. 85-4345 SEAMLESS HOSPITAL PRODUCTS, FCHR Order No. 86-032 Respondent. /
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
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 by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
