16-001315 Jasminne Myles vs. Department Of Children And Families Status: Closed Recommended Order on Friday, April 29, 2016.

Summary: Upon her termination from employment, Petitioner was overpaid for leave she had not earned as a probationary employee and must repay it to the Department.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JASMINNE MYLES,

Petitioner,

vs. Case No. 16 - 1315

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (DOAH), on April 14, 2016 , in Daytona

Beach , Florida.

APPEARANCES

For Petitioner: Jasminne Myles , pro se

222 Ontario Court

Daytona Beach, Florida 32114

For Respondent: Jane Almy - Loewinger, Esquire

Department of Children and Families

210 North Palmetto Ave nue, Suite 447

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE S

The issues are whether Petitioner received a salary

overpayment at the time of her separation from employment with

Respondent to which s he was not entitled, as set forth in

correspondence dated February 5, 2016 ; and, if so, whether

Respondent is en titled to a repayment for the salary overpayment

made to Petitioner .

PRELIMINARY STATEMENT

In a letter dated February 5, 2016 , Petitioner received

notice of the decision of the Department of Children and Families

(Department) to require Petitioner to compe nsate the Department

for the agency Ó s error in calculating Petitioner Ó s salary payment

due to the late submission of Petitioner Ó s separation package .

Respondent contended in its notice that Petitioner had a salary

overpayment for a total of 40 hours in th e amount of $ 408 . 86 .

Petitioner timely filed a R equest for A dministrative H earing

to contest the findings of the Department that Petitioner

received an overpayment and must remit the amount due to

Respondent. On March 10, 2016 , the matter was referred t o DOAH.

Based on the response of the parties to the March 10, 2016 ,

Initial Order, the final hearing was scheduled for April 14,

2016 , in Daytona Beach , Florida.

At the hearing, Petitioner presented h er own testimony. No

other witnesses were called by Pe titioner, and Petitioner offered

no exhibits. Respondent presented the testimony of Susan Monick,

H uman R esources S hared S ervices R epresentative for the

Department , and offered one composite exhibit, which w as admitted

into evidence.

A one - volume Transc ript of the final hearing was filed on

April 22 , 2016 . On April 25 , 2016 , Respondent filed a P roposed

Recommended O rder. Petitioner did not file a proposed order.

References to statutes are to Florida Statutes (201 5 ),

unless otherwise noted.

FINDING S OF FACT

1. Petitioner, Jasminne Myles , was hired as a career

service employee of the Department in the position of E conomic

S elf S ufficiency S pecialist I in the Office of Economic Self

Sufficiency , with an effective appointment date of May 22, 2015,

whic h included a 12 - month probationary status.

2. Petitioner resigned from her employment with the

Department effective January 21, 2016. At that point, she had

been employed with the Department for eight months, placing her

squarely within the 12 - month p robationary period.

3. Petitioner Ó s supervisor submitted her approved, accurate

time record 26 minutes late on February 3, 2016, which resulted

in Petitioner being paid for 80 hours for the month , rather than

for the 40 hours to which she was entitled to be paid during her

last pay period.

4. Petitioner testified that she was told by various

supervisory employees of the Department who ranked above her and

upon who se statements she believed she could rely, that she was

entitled to her entire amount of unu sed annual leave. She

believed her final paycheck in the amount she usually received,

was the one to which she was entitled.

5. Unfortunately for Petitioner, any information she

received or believes she received from her supervisors in this

regard, was incorrect. The Department is bound by statute and

rule as to how its employees are paid, including the handling of

leave pay - outs for employees during their probationary periods.

6. Petitioner believed she had been properly compensated

until she was cont acted by Susan Monick, who informed her of the

overpayment. She was told that, because she had not been

employed by the Department for 12 months, she was not allowed to

take her unused vacation time.

7. While Petitioner did not recall receiving or readin g the

employee handbook given to her by the Department outlining

CFOP 60 - 1, which mirrors the applicable Florida Administrative

Code R ule 60L - 34.0041(6)(a), she acknowledged that the language

put before her at the hearing supported the Department Ó s positio n

regarding her entitlement to the leave pay - out.

8. Ms. Monick testified that she has been employed by the

Department for 33 years and that she sent Petitioner a letter

notifying her of the overpayment in the amount of $408.46 on

February 5, 2016. She a cknowledged Petitioner Ó s service of eight

months and the fact that the paycheck had been automatically

generated due to the barely late filing of Petitioner Ó s

termination paperwork. She also told Petitioner that she must

repay the full $408. 8 6 , the overpa yment amount.

9. Ms. Monick stated that if Petitioner had extended her

separation date by one week and used her annual leave, she would

not have been overpaid and would have been entitled to the full

amount of the paycheck.

CONCLUSIONS OF LAW

10 . The Di vision of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

11 . Petitioner has the burden of proving by a preponderance

of the evidence that s he is not responsib le for the repayment of

funds erroneously paid to h er by the Department due to its error

in determining the amount of leave due to Petitioner. See Balino

v. Dep Ó t of Health & Rehabilitative Servs. , 348 So. 2d 349 (Fla.

1st DCA 1977); McDonald v. Dep Ó t of Prof Ó l Reg. , 582 So. 2d 660

(Fla. 1st DCA 1991).

12 . Rule 60L - 34.001(6)(a ) provides in relevant part:

A career service employee who separates from

state government with twelve continuous

months of service shall be paid for unused

annual leave, up to a lif etime maximum of

240 hours. With respect to leave payments

received at the time of separation, agencies

shall only include payments for separations

occurring after December 31, 2001 .

13. Here, Petitioner worked at the Department only eight

months. The only reason she was overpaid was due to her

supervisor Ó s filing her separation paperwork 26 minutes late.

Petitioner is not entitled to keep the overpayment because she

has not satisfied the rule requirement of 12 continuous months of

state employment. I n this case, Petitioner cannot meet her

burden of proving her entitlement to keeping the overpayment,

because she has no entitlement to the extra money. Petitioner

has failed to show she met the threshold requirement of

12 continuous months of state emplo yment and, therefore, is not

entitled to keep the overpayment of $408. 8 6.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order requiring Petitioner to repay the

salary overpayment in the amount of $ 408.86 .

DONE AND ENTERED this 2 9 th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearin gs

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 2 9 th day of April , 2016 .

COPIES FURNISHED:

Jane Almy - Loewinger, Esquire

Department of Children and Families

210 North Palmetto Ave nue, Suite 447

Daytona Beach, Florida 32114

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Talla hassee, Florida 32399 - 0700

(eServed)

Jasminne Myles

222 Ontario Court

Daytona Beach, Florida 32114

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Reb ecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All 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.