13-003710 Lil Guerrero vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Monday, November 25, 2013.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

I LEANA TOLEDO ,

Petitioner,

vs. Case No. 13 - 3708

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

/

N ORMA PEDRAZA ,

Petitioner,

vs. Case No. 13 - 3709

AGENCY FOR PERSONS WIT H

DISABILITIES,

Respondent.

/

L IL GUERRERO ,

Petitioner,

vs. Case No. 13 - 3710

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

/

RECOMMENDED ORDER

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

Schwartz for final hearing by video teleconference on October 21,

2013, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner s : Ileana Toledo, pro se

371 Northwest 59th Avenue

Miami, Florida 33126 - 3734

Norma I. Pedraza, pro se

20727 Southwest 105 th Avenue

Miami, Florida 33189 - 3658

Lil Guerrero, pro se

12316 Southwest Tenth Lane

Miami, Florida 33184 - 2445

For Respondent: Hilda A. Fluriach, Esquire

William Crowe, Esquire

Suite S - 811

Agency for Pe rsons with Disabilities

401 Northwest Second Avenue

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether Petitioners received salary overpayments from the

Agenc y for Persons with Disabilities.

PRELIMINARY STATEMENT

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

Persons with Disabilities (ÐRespondentÑ), advised Petitioner

Ileana Toledo that due to an administrative coding error, a

salary overpayment totaling $464.63 was made during a period of

PetitionerÓs employme nt with Respondent. By letter dated

August 14, 2013, Respondent advised Petitioner Norma Pedraza that

due to an administrative coding error, a salary overpayment

totaling $ 624.14 was made during a period of PetitionerÓs

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

Respondent advised Petitioner Lil Guerrero that due to an

administrative coding error, a salary overpayment totaling

$426.65 was made during a period of PetitionerÓs employment with

Respondent. Respondent requested repayment of the above amounts

from Petitioners, and Petitioners were advised of their right to

dispute the overpayment s and request a hearing.

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

the matters were forwarded to the Division of Administrative

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

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

initially assigned to Administrative Law Judge Robert E. Meale.

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

that these c ases be consolidated for further handling. On

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

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

video teleconference, with sites in Tallahassee and Miami,

Florida.

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

offered four e xhibits into evidence . None of PetitionersÓ

proposed exhibits were provided to the undersigned prior to the

hearing as required by the Notice of Hearing. PetitionersÓ

exhibits were not sent to and received by RespondentÓs counsel

until Friday, October 18, 2013, via email.

Nevertheless, PetitionersÓ Exhibits 1 and 2, each of which

consisted of two pages of handwritten notes authored by

RespondentÓs employees , were admitted into evidence without

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

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

Niurka Romero , was admitted into evidence without objection .

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

201 3, from Maria Springer to Carolyn Hunter and other employees

of Respondent , was admitted into evidence without objection .

However, an additional email contained within Exhibit 4 was not

admitted . 1/

The undersigned granted RespondentÓs request for officia l

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

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

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

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

admitted into evidence without objection .

The Transcript of the final hearing was filed electronically

on November 7, 2013. The parties timely filed proposed

recommended orders, which were given consideration in the

preparation of this Recommended Order.

FINDING S OF FACT

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

Norma Pedraza, and Lil Guerrero have been career service

employees of Respondent .

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

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

is responsible for designating employment positions within

Respondent. A position is either included for overtime pay or

excluded from overtime pay. At issue is whether Petitioners

erroneously received monetary compensation fo r overtime hours

worked after their position was reclassified from an included

career service position to an excluded career service position.

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

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

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

Respondent proposed to reclassify PetitionersÓ position from

Human Service s Counselor III to Human Service Program Analyst ,

which is designated by DMS as an excluded career service

positi on . The proposed reclassifi cation resulted from a

reorganization of RespondentÓs regional offices , and an effort by

Respondent to standardize its functions , services , and types of

positions in its regional offices.

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

advised by RespondentÓs Human Resources Director , Dale Sullivan ,

that if they accepted an offer to reclassify their position from

Human Services Counselor III to Human Service Program Analyst,

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

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

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

RespondentÓs o ffer of employment to reclassify their position

from Human Service s Counselor III to Human Service Progra m

Analyst.

6 . Typically, employees of Respondent who are appointed to

new positions are placed in probationary status, as opposed to

permanent status, and are required to review and execute new

position descriptions. However, the reclassification of

Pe titionersÓ position by Respondent was not typical.

7. As part of the reclassification of PetitionersÓ position

to Human Service Program Analyst , Respondent provided Petitioners

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

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

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

8 . Petitioners read and acknowledged their receipt of the

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

the positio n description, there is a heading titled ÐPosition

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

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

indicating that Petitioners are not eligible to work overtime

hours .

9. Th e position description further indicates that

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

position description does not specifically include the terms

i ncluded or excluded .

10 . Prior to the reclassification, Petitioners were paid

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

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

compensation for their overtime hours . Payment for PetitionersÓ

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

sub mitted to the People First leave and payroll system.

11 . After the reclassification of their position,

Petitioners continued to work overtime in excess of their

bi - weekly contractual hours, despite the prohibition in the

position description. Petitio ners were required to obtain

approval by their supervisors before being allowed to work

overtime. PetitionersÓ overtime was a pproved by their

supervisors after the reclassification despite the prohibition on

working overtime hours as indicated in the posi tion description.

1 2 . During the pay period s of March 29 - April 11 , 2013 ;

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

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

monetary compensation in the amount of $464.63 from Resp ondent

for these overtime hours.

1 3 . For the pay periods of March 29 - April 11, 2013;

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

2013, Petitioner Norma Pedraza worked a total of 32.25 hours of

overtime, and received monetary compe nsation in the amount of

$624.14 from Respondent for these overtime hours.

1 4 . For the pay periods of March 29 - April 11, 2013;

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

2013, Petitioner Lil Guerrero worked a total of 25.50 hours of

overtime, and received monetary compensation in the amount of

$426.65 from Respondent for these overtime hours.

1 5 . RespondentÓs payment of monetary compensation to

Petitioners for the overtime hours worked after the

reclassification of their position to Human Service Program

Analyst occurred due to an administrative coding error , thereby

resulting in the overpayment of monetary compensation to

Petitioners by Respondent in the amounts the Respondent seeks to

recover from Petitioners . The administrative coding error

occurred because of RespondentÓs failure to note the change from

included to excluded on the People First system following the

reclassification of PetitionersÓ position . The error occurred

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

issue.

1 6 . Petitioners should not have receive d monetary

compensation for their overtime hours in the Human Service

Program Analyst position b ecause a Human Service Program Analyst

position is an excluded career service position.

1 7 . An excluded career service employee must earn and

receive regular compensation leave credits for overtime work , but

cannot receive monetary compensation for overtime work . On the

other hand, included career service employees, such as those

persons in PetitionersÓ previous position of Human Services

Counselor III, must receive monetary compensation for overtime

hours work ed , rather than regular compensatory leave credits .

1 8 . Neither Petitioners n or their supervisors were aware at

the time that the overpayments were made that Petitioners could

not receive monetary compensation for their overtime hours , but

must instead receive regular compensatory leave credit s .

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

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

2 0 . In accordance with the Department of Management

ServicesÓ Bureau of Payroll Manual, the amount of salary

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

set forth in paragraphs 12 - 1 4 above.

2 1 . When an agency has determined that a salary overpayment

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

the above - referenced manual, to seek repayment. Respondent

followed those procedures in making the calculations relevant in

this c ase.

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

Statutes .

2 3 . A state employee who disputes tha t he or she has been

overpaid in the amount claimed by the employing agency is

entitled to a section 120.57 hearing before any final action is

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

1246 (Fla. 1 st DCA 1983). As the party seeking r ecovery of

salary overpayments, Respondent has the burden of proving by a

preponderance of the evidence that Petitioners received salary

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

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

2 4 . DMS has e stablished a classification and compensation

program for career service positions . ÐIf an agency requires an

excluded career service employee to work hours in excess of the

regular work period or an approved extended work period, the

employee shall , with agency approval, earn regular compensatory

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

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

2 5 . The evidence at hearing clearly shows that after the

reclassification of their position to Human Service Program

Analyst, Petitioners were classified as excluded career service

employees, worked overtime , and received monetary compensation

for their overtime hours for which they were not entitled.

Instead of receiving monetary compensation for their overtim e

hours, Petitioners were entitled to receive regular compensatory

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

Administrative Code Rule 60L - 3 4.0043.

2 6 . As a result of the monetary compensation paid to

Petitioners for their overtime hours following the

reclassification of their position to Human Service Program

Analyst, Petitioners were overpaid salary. The overpayment

occurred as a result of an honest mistake resulting from an

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

dispute as to the amount of monetary compensation paid to

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

dispute as to the number of overtime hours worked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f

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

Agency for Persons with Disabilities determining that : 1)

Petitioner Ileana Toledo was erroneously paid salary in the

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

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

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

Petitioners are entitled to be compensated by Respondent through

compensatory leave credits for the overtime hours worked as

reflected in para graphs 12 - 14 above.

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

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee 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 25th day of November , 2013 .

ENDNOTE

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

Administrative Hearings on October 22, 2013.

COPIES FURNISHED:

Juan Ricardo Collins, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399

Hilda Fluriach, Esquire

Agency for Perso ns with Disabilities

Room South 811

401 Northwest Second Avenue

Miami, Florida 33128

Illeana Toledo

371 Northwest 59th Avenue

Miami, Florida 33126 - 3734

Norma I. Pedraza

20727 So uth west 105 th Avenue

Miami, Florida 33189 - 3658

Lil G uerrero

12316 Southwest Ten th Lane

Miami, Florida 33184 - 2445

Jamie Morrow, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

Richard Ditschler, General Counsel

Agency for Persons w ith Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

A ll parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.