13-003708 Iieana Toledo vs. Agency For Persons With Disabilities
 Status: Closed
Recommended Order on Monday, November 25, 2013.


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Summary: Petitioners were overpaid salary when they received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded position

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8I LEANA TOLEDO ,

11Petitioner,

12vs. Case No. 13 - 3708

18AGENCY FOR PERSONS WITH

22DISABILITIES,

23Respondent.

24/

25N ORMA PEDRAZA ,

28Petitioner,

29vs. Case No. 13 - 3709

35AGENCY FOR PERSONS WIT H

40DISABILITIES,

41Respondent.

42/

43L IL GUERRERO ,

46Petitioner,

47vs. Case No. 13 - 3710

53AGENCY FOR PERSONS WITH

57DISABILITIES,

58Respondent.

59/

60RECOMMENDED ORDER

62The s e c ase s came before Administrative Law Judge Darren A.

75Schwartz for final hearing by video teleconference on October 21,

852013, at sites in Tallahassee and Miami, Florida.

93APPEARANCES

94For Petitioner s : Ileana Toledo, pro se

102371 Northwest 59th Avenue

106Miami, Florida 33126 - 3734

111Norma I. Pedraza, pro se

11620727 Southwest 105 th Avenue

121Miami, Florida 33189 - 3658

126Lil Guerrero, pro se

13012316 Southwest Tenth Lane

134Miami, Florida 33184 - 2445

139For Respondent: Hilda A. Fluriach, Esquire

145William Crowe, Esquire

148Suite S - 811

152Agency for Pe rsons with Disabilities

158401 Northwest Second Avenue

162Miami, Florida 33128

165STATEMENT OF THE ISSUE

169Whether Petitioners received salary overpayments from the

176Agenc y for Persons with Disabilities.

182PRELIMINARY STATEMENT

184By let ter dated August 14, 2013, Respondent , Agency for

194Persons with Disabilities (ÐRespondentÑ), advised Petitioner

200Ileana Toledo that due to an administrative coding error, a

210salary overpayment totaling $464.63 was made during a period of

220PetitionerÓs employme nt with Respondent. By letter dated

228August 14, 2013, Respondent advised Petitioner Norma Pedraza that

237due to an administrative coding error, a salary overpayment

246totaling $ 624.14 was made during a period of PetitionerÓs

256employment with Respondent . By le tter dated August 14, 2013,

267Respondent advised Petitioner Lil Guerrero that due to an

276administrative coding error, a salary overpayment totaling

283$426.65 was made during a period of PetitionerÓs employment with

293Respondent. Respondent requested repayment of the above amounts

301from Petitioners, and Petitioners were advised of their right to

311dispute the overpayment s and request a hearing.

319Petitioners requested a hearing, and o n September 25, 2013,

329the matters were forwarded to the Division of Administrative

338He arings. Case No. 13 - 3709 was initially assigned to

349Administrative Law Judge Mary Li Creasy. Case No. 13 - 3710 was

361initially assigned to Administrative Law Judge Robert E. Meale.

370In their responses to the i nitial o rder s , Petitioners requested

382that these c ases be consolidated for further handling. On

392October 1, 2013 , the undersigned entered an O rder consolidating

402these matters. The hearing was set for October 21, 2013, by

413video teleconference, with sites in Tallahassee and Miami,

421Florida.

422At hearing, Peti tioners testified on their own behalf , and

432offered four e xhibits into evidence . None of PetitionersÓ

442proposed exhibits were provided to the undersigned prior to the

452hearing as required by the Notice of Hearing. PetitionersÓ

461exhibits were not sent to and received by RespondentÓs counsel

471until Friday, October 18, 2013, via email.

478Nevertheless, PetitionersÓ Exhibits 1 and 2, each of which

487consisted of two pages of handwritten notes authored by

496RespondentÓs employees , were admitted into evidence without

503obj ection. PetitionersÓ Exhibit 3, which consisted of an email

513dated April 30, 2013, from Maria Springer to Carolyn Hunter and

524Niurka Romero , was admitted into evidence without objection .

533PetitionersÓ Exhibit 4, which consisted of an email d ated May 29,

545201 3, from Maria Springer to Carolyn Hunter and other employees

556of Respondent , was admitted into evidence without objection .

565However, an additional email contained within Exhibit 4 was not

575admitted . 1/

578The undersigned granted RespondentÓs request for officia l

586recognition of Florida Administrative Code R ule 60L - 34 and

597c hapter 110, Florida Statutes (201 3 ). Respondent presented the

608testimony of Dale Sullivan, Maria Springer, Niurka Romero, and

617Carolyn Hunter , and offered Exhibits 1 - 3, all of which were

629admitted into evidence without objection .

635The Transcript of the final hearing was filed electronically

644on November 7, 2013. The parties timely filed proposed

653recommended orders, which were given consideration in the

661preparation of this Recommended Order.

666FINDING S OF FACT

6701. At all times material hereto, Petitioners Ileana Toledo,

679Norma Pedraza, and Lil Guerrero have been career service

688employees of Respondent .

6922. The Department of Management Services (ÐDMSÑ) has a

701classification and pay system that is used by Respondent, and DMS

712is responsible for designating employment positions within

719Respondent. A position is either included for overtime pay or

729excluded from overtime pay. At issue is whether Petitioners

738erroneously received monetary compensation fo r overtime hours

746worked after their position was reclassified from an included

755career service position to an excluded career service position.

7643. Prior to March 28, 2013, Petitioners held the position

774of Human Service s Counselor III , which was designate d by DMS as

787an included career service position . On March 2 6 , 2013,

798Respondent proposed to reclassify PetitionersÓ position from

805Human Service s Counselor III to Human Service Program Analyst ,

815which is designated by DMS as an excluded career service

825positi on . The proposed reclassifi cation resulted from a

835reorganization of RespondentÓs regional offices , and an effort by

844Respondent to standardize its functions , services , and types of

853positions in its regional offices.

8584 . In a letter dated March 26, 201 3, Petitioners were

870advised by RespondentÓs Human Resources Director , Dale Sullivan ,

878that if they accepted an offer to reclassify their position from

889Human Services Counselor III to Human Service Program Analyst,

898their Ð current status and salary will remai n unchanged. Ñ

9095 . Notably, the March 26, 2013, letter makes no specific

920mention of overtime. On March 28, 2013, Petitioners accepted

929RespondentÓs o ffer of employment to reclassify their position

938from Human Service s Counselor III to Human Service Progra m

949Analyst.

9506 . Typically, employees of Respondent who are appointed to

960new positions are placed in probationary status, as opposed to

970permanent status, and are required to review and execute new

980position descriptions. However, the reclassification of

986Pe titionersÓ position by Respondent was not typical.

9947. As part of the reclassification of PetitionersÓ position

1003to Human Service Program Analyst , Respondent provided Petitioners

1011with a new p osition d escription . However, P etitioners Ó job

1024duties , salaries, and permanent status remained the same as they

1034had been in their prior position of Human Service s Counselor III.

10468 . Petitioners read and acknowledged their receipt of the

1056new position description on March 28, 2013. On the first page of

1068the positio n description, there is a heading titled ÐPosition

1078Attributes Ñ . Under this heading, the term ÐOvertimeÑ is shown,

1089followed by two boxes, ÐYesÑ and ÐNo.Ñ The ÐNoÑ box is marked,

1101indicating that Petitioners are not eligible to work overtime

1110hours .

11129. Th e position description further indicates that

1120Petitioners would be c areer s ervice employees. However, the

1130position description does not specifically include the terms

1138i ncluded or excluded .

114310 . Prior to the reclassification, Petitioners were paid

1152bi - we ekly based on an 80 - hour pay period. If they worked more

1168than 80 hours in a pay period, they received additional monetary

1179compensation for their overtime hours . Payment for PetitionersÓ

1188regular and overtime work hours w as based on employee time sheets

1200sub mitted to the People First leave and payroll system.

121011 . After the reclassification of their position,

1218Petitioners continued to work overtime in excess of their

1227bi - weekly contractual hours, despite the prohibition in the

1237position description. Petitio ners were required to obtain

1245approval by their supervisors before being allowed to work

1254overtime. PetitionersÓ overtime was a pproved by their

1262supervisors after the reclassification despite the prohibition on

1270working overtime hours as indicated in the posi tion description.

12801 2 . During the pay period s of March 29 - April 11 , 2013 ;

1295April 26 - May 9, 2013; and May 10 - June 23, 2013, Petitioner Ileana

1310Toledo worked a total of 28 hours of overtime, and received

1321monetary compensation in the amount of $464.63 from Resp ondent

1331for these overtime hours.

13351 3 . For the pay periods of March 29 - April 11, 2013;

1349April 12 - April 25, 2013; April 26 - May 9, 2013; and May 10 - May 23,

13672013, Petitioner Norma Pedraza worked a total of 32.25 hours of

1378overtime, and received monetary compe nsation in the amount of

1388$624.14 from Respondent for these overtime hours.

13951 4 . For the pay periods of March 29 - April 11, 2013;

1409April 12 - April 25, 2013; April 26 - May 9, 2013; and May 10 - May 23,

14272013, Petitioner Lil Guerrero worked a total of 25.50 hours of

1438overtime, and received monetary compensation in the amount of

1447$426.65 from Respondent for these overtime hours.

14541 5 . RespondentÓs payment of monetary compensation to

1463Petitioners for the overtime hours worked after the

1471reclassification of their position to Human Service Program

1479Analyst occurred due to an administrative coding error , thereby

1488resulting in the overpayment of monetary compensation to

1496Petitioners by Respondent in the amounts the Respondent seeks to

1506recover from Petitioners . The administrative coding error

1514occurred because of RespondentÓs failure to note the change from

1524included to excluded on the People First system following the

1534reclassification of PetitionersÓ position . The error occurred

1542due to an honest mistake, and resulted in the overpa yments at

1554issue.

15551 6 . Petitioners should not have receive d monetary

1565compensation for their overtime hours in the Human Service

1574Program Analyst position b ecause a Human Service Program Analyst

1584position is an excluded career service position.

15911 7 . An excluded career service employee must earn and

1602receive regular compensation leave credits for overtime work , but

1611cannot receive monetary compensation for overtime work . On the

1621other hand, included career service employees, such as those

1630persons in PetitionersÓ previous position of Human Services

1638Counselor III, must receive monetary compensation for overtime

1646hours work ed , rather than regular compensatory leave credits .

16561 8 . Neither Petitioners n or their supervisors were aware at

1668the time that the overpayments were made that Petitioners could

1678not receive monetary compensation for their overtime hours , but

1687must instead receive regular compensatory leave credit s .

169619 . At hearing, Petitioners did not dispute the amounts and

1707hours of overtime wor ked as set forth in paragraphs 1 2 - 1 4 above.

17232 0 . In accordance with the Department of Management

1733ServicesÓ Bureau of Payroll Manual, the amount of salary

1742overpaid, and the amount sought to be repaid, was calculated as

1753set forth in paragraphs 12 - 1 4 above.

17622 1 . When an agency has determined that a salary overpayment

1774has occurred, it is required to follow procedures set forth in

1785the above - referenced manual, to seek repayment. Respondent

1794followed those procedures in making the calculations relevant in

1803this c ase.

1806CONCLUSIONS OF LAW

18092 2 . The Division of Administrative Hearings has

1818jurisdiction of the subject matter of and the parties to this

1829proceeding pursuant to sections 120.569 and 120.57 (1) , Fl orida

1839Statutes .

18412 3 . A state employee who disputes tha t he or she has been

1856overpaid in the amount claimed by the employing agency is

1866entitled to a section 120.57 hearing before any final action is

1877taken. Dep't. of Corr. v . Career Serv. Comm . , 429 So. 2d 1244,

18911246 (Fla. 1 st DCA 1983). As the party seeking r ecovery of

1904salary overpayments, Respondent has the burden of proving by a

1914preponderance of the evidence that Petitioners received salary

1922overpayments. Florida Dep 't . of Trans p. v. J.W.C. Co., Inc ., 396

1936So. 2d 778, 788 (Fla. 1 st DCA 1981).

19452 4 . DMS has e stablished a classification and compensation

1956program for career service positions . ÐIf an agency requires an

1967excluded career service employee to work hours in excess of the

1978regular work period or an approved extended work period, the

1988employee shall , with agency approval, earn regular compensatory

1996leave credits on an hour - for - hour basis . . . . Ñ Fla. Admin.

2013Code. R. 60L - 34.0043 (emphasis added).

20202 5 . The evidence at hearing clearly shows that after the

2032reclassification of their position to Human Service Program

2040Analyst, Petitioners were classified as excluded career service

2048employees, worked overtime , and received monetary compensation

2055for their overtime hours for which they were not entitled.

2065Instead of receiving monetary compensation for their overtim e

2074hours, Petitioners were entitled to receive regular compensatory

2082leave credits on an hour - for - hour basis pursuant to Florida

2095Administrative Code Rule 60L - 3 4.0043.

21022 6 . As a result of the monetary compensation paid to

2114Petitioners for their overtime hours following the

2121reclassification of their position to Human Service Program

2129Analyst, Petitioners were overpaid salary. The overpayment

2136occurred as a result of an honest mistake resulting from an

2147administrative coding error. As set forth above, there is no

2157dispute as to the amount of monetary compensation paid to

2167Petitioners for the overtime hours they worked. Nor is there any

2178dispute as to the number of overtime hours worked.

2187RECOMMENDATION

2188Based on the foregoing Findings of Fact and Conclusions o f

2199Law, it is RECOMMENDED that a Final Order be entered by the

2211Agency for Persons with Disabilities determining that : 1)

2220Petitioner Ileana Toledo was erroneously paid salary in the

2229amount of $464.63; 2) Petitioner Norma Pedraza was erroneously

2238paid salary i n the amount of $624.13 ; 3) Petitioner Lil Guerrero

2250was erroneously paid salary in the amount of $426.65; and 4)

2261Petitioners are entitled to be compensated by Respondent through

2270compensatory leave credits for the overtime hours worked as

2279reflected in para graphs 12 - 14 above.

2287DONE AND ENTERED this 2 5th day of November , 2013 , in

2298Tallahassee, Leon County, Florida.

2302S

2303DARREN A. SCHWARTZ

2306Administrative Law Judge

2309Division of Administrative Hearings

2313The DeSoto Building

23161230 Apala chee Parkway

2320Tallahassee, Florida 32399 - 3060

2325(850) 488 - 9675

2329Fax Filing (850) 921 - 6847

2335www.doah.state.fl.us

2336Filed with the Clerk of the

2342Division of Administrative Hearings

2346this 25th day of November , 2013 .

2353ENDNOTE

23541/ Pe titionersÓ e xhibits were late - file d with the Division of

2368Administrative Hearings on October 22, 2013.

2374COPIES FURNISHED:

2376Juan Ricardo Collins, Esquire

2380Agency for Persons with Disabilities

2385Suite 380

23874030 Esplanade Way

2390Tallahassee, Florida 32399

2393Hilda Fluriach, Esquire

2396Agency for Perso ns with Disabilities

2402Room South 811

2405401 Northwest Second Avenue

2409Miami, Florida 33128

2412Illeana Toledo

2414371 Northwest 59th Avenue

2418Miami, Florida 33126 - 3734

2423Norma I. Pedraza

242620727 So uth west 105 th Avenue

2433Miami, Florida 33189 - 3658

2438Lil G uerrero

244112316 Southwest Ten th Lane

2446Miami, Florida 33184 - 2445

2451Jamie Morrow, Agency Clerk

2455Agency for Persons with Disabilities

24604030 Esplanade Way, Suite 380

2465Tallahassee, Florida 32399 - 0950

2470Richard Ditschler, General Counsel

2474Agency for Persons w ith Disabilities

24804030 Esplanade Way, Suite 380

2485Tallahassee, Florida 32399 - 0950

2490Barbara Palmer, Executive Director

2494Agency for Persons with Disabilities

24994030 Esplanade Way, Suite 380

2504Tallahassee, Florida 32399 - 0950

2509NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2515A ll parties have the right to submit written exceptions within

252615 days from the date of this Recommended Order. Any exceptions

2537to this Recommended Order should be filed with the agency that

2548will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 02/05/2014
Proceedings: Agency Final Order filed.
PDF:
Date: 02/04/2014
Proceedings: Agency Final Order
PDF:
Date: 11/25/2013
Proceedings: Recommended Order
PDF:
Date: 11/25/2013
Proceedings: Recommended Order (hearing held October 21, 2013). CASE CLOSED.
PDF:
Date: 11/25/2013
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/15/2013
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 11/07/2013
Proceedings: Transcript filed.
PDF:
Date: 11/07/2013
Proceedings: Notice of Filing filed.
PDF:
Date: 10/30/2013
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 10/22/2013
Proceedings: Notice of Proposed Exhibits filed (exhibits not available for viewing).
Date: 10/21/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/17/2013
Proceedings: Notice of Filing.
PDF:
Date: 10/16/2013
Proceedings: Notice of Filing filed.
PDF:
Date: 10/16/2013
Proceedings: Notice of Filing filed.
PDF:
Date: 10/09/2013
Proceedings: Notice of Appearance (Hilda Fluriach; filed in Case No. 13-003710).
PDF:
Date: 10/09/2013
Proceedings: Notice of Appearance (Hilda Fluriach; filed in Case No. 13-003709).
PDF:
Date: 10/07/2013
Proceedings: Notice of Appearance (Hilda Fluriach) filed.
PDF:
Date: 10/01/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/01/2013
Proceedings: Notice of Hearing by Video Teleconference (hearing set for October 21, 2013; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 10/01/2013
Proceedings: Order of Consolidation (DOAH Case Nos. 13-3708, 13-3709, and 13-3710).
PDF:
Date: 10/01/2013
Proceedings: (Petitioner's) Response to Initial Order filed.
PDF:
Date: 09/25/2013
Proceedings: (Corrected) Agency action letter filed.
PDF:
Date: 09/25/2013
Proceedings: (Corrected) Petition for Administrative Hearing filed.
PDF:
Date: 09/25/2013
Proceedings: Initial Order.
PDF:
Date: 09/25/2013
Proceedings: Agency action letter filed.
PDF:
Date: 09/25/2013
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 09/25/2013
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
DARREN A. SCHWARTZ
Date Filed:
09/25/2013
Date Assignment:
09/25/2013
Last Docket Entry:
02/05/2014
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (2):