17-002944 Department Of Corrections vs. Nancy E. Mills Status: Closed Recommended Order on Thursday, January 18, 2018.

Summary: There is no basis upon which to recommend affirmative relief to complainant because of a state agency payroll error, be it monetary or otherwise.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CORRECTIONS,

Petitioner,

vs. Case No. 17 - 2944

NANCY E. MILLS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to N otice, a formal hearing w as held in this case

before W. David Watkins, a duly designated Administrative Law

Judge of the Division of Administrative Hearings, on July 21,

2017, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Maria S hameem Dinkins, Esquire

Department of Corr ections

501 South Calhoun Street

Tallahassee, Florida 32399

For Respondent: Nancy Mills, pro se

191 Nursery Road

Monticello, Florida 32344

STATEMENT OF THE ISSUE

What relief, if any, should be provided by Petitioner to

Respondent as the result of an accidental overpayment, and the

subsequent recoupment of the overpayment?

PRELIMINARY STATEMENT

On May 15, 2017 , Respondent, Nancy E. Mills (Ms. Mills) ,

filed a written request for administrative hearing (Petition)

with her employer, the Florida De partment of Corrections (DOC).

In her Petition Ms. Mills stated:

I was negatively affected by the Region 1

payroll issue that occurred in March of

2017. I was underpaid and overpaid in both

regular and overtime wages, which has

resulted in inaccurate Yea r to Date (YTD)

Payments. These inaccurate YTD figures will

jeopardize my family's eligibility and

amount of monthly benefit assistance from

DCF. I am required to re - certify

eligibility in June of 2017. These errors

may result in my family's assistance being

reduced or terminated, with additional

financial hardship possible to settle what

DCF may consider overpayment of benefits, or

worse if interpreted as suspected/attempted

fraud and failure on my part to report

additional earned income. The undue

fin ancial and emotional stress of this event

has been an ongoing issue since the

beginning of March 2017, and will continue

into 2018 until my 2017 taxes are accepted

by the IRS, unless resolved. As an

individual diagnosed with Multiple Sclerosis

{MS), the e xtent of damages and suffering to

my health are not yet known, but will also

be reviewed in June 2017.

DOC referred the request for hearing to the Division of

Administrative Hearings (DOAH) on May 17, 2017, where the matter

was assigned DOAH Case No. 17 - 2944, and assigned to the

undersigned for the conduct of a formal administrative hearing.

By n otice dated May 25, 2017 , the hearing was scheduled for

July 21, 2017, in Tallahassee, Florida.

The final hearing convened as scheduled. At hearing, DOC

presen ted the testimony of Dave Vermette, s enior p ersonnel

m anager for DOC. DOC offered Exhibits A through D, all of which

were received into evidence. Respondent testified on her own

behalf, but did not call any other witnesses. Respondent Ó s

Exhibits 1 and 2 were received in evidence. A court reporter

was not present at the final hearing.

At the conclusion of the final hearing it became clear to

the undersigned, and to the parties, that the remedies offered

by DOC to address Ms. MillsÓ concerns would likely resolve the

matter to the satisfaction of both parties. Accordingly, both

parties agreed to attempt to arrive at a settlement agreement,

and specifically, to identify the amount and types of payroll

adjustments that would be necessary to resolve Ms. Mills Ó

concerns. It was agreed that the parties would confer and that

DOC would draft a proposed settlement agreement and provide it

to Ms. Mills by July 21, 2017, and in turn, that Ms. Mills would

notify DOC of her acceptance or rejection of the settlement

do cument by not later than September 15, 2017.

On July 24, 2017, the undersigned entered an Order placing

the case in abeyance, instructing the parties to advise the

undersigned as to the status of their settlement efforts by not

later than October 2, 2017.

On September 27, 2017, the undersigned was made aware that

the wheels had come off the settlement bus. On that date , DOC

filed a Notice of Noncompliance, advising that efforts to reach

a settlement had not been successful. Thereafter , followed

several ad ditional filings by the part ies , each placing the

blame for the settlement failure on the other.

On November 21, 2017 , the undersigned entered an Order

Lifting Abeyance and Authorizing the Submittal of Proposed

Recommended Order s , instructing the parties o f the opportunity

to file proposed recommended or ders by not later than

December 15, 2017.

Thereafter, the parties timely submitted P roposed

R ecommended O rders (PROs), both of which have been carefully

considered in the preparation of this Recommended Ord er.

Unless otherwise noted, all statutory references are to the

2017 version of the Florida Statutes.

FINDING S OF FACT

1 . Ms. Mills has been employed by DOC for approximately

four years, and was employed by DOC as of the date of hearing.

2 . Due to huma n error in implementing a new payroll system

(KRONOS), on March 17, 2017 , Ms. Mills was overpaid in the

amount of $494.01. The error a ffected over 5,000 employees

of D O C.

3 . To address the overpayment, DOC corrected the error by

deducting $247.01 from M s. MillsÓ regular paycheck of April 27,

2017 , and $247.00 from Ms. MillsÓ regular paycheck of May 12,

2017, for a total adjustment of $494.01.

4 . Due to the erroneous overpayment, an excess amount of

federal income tax withholding ($155.65) was withheld from

Ms. MillsÓ paycheck of March 17, 2017.

5 . Dave Vermette, DOCÓs s enior p ersonnel m anager,

attempted to determine whether it was possible to correct the

excess federal income tax withheld by reducing future federal

tax withholding during the remaind er of 2017. Unfortunately , it

was determined that such an adjustment could not be made.

6 . To address Ms. MillsÓ concerns that the erroneous

overpayment might affect her eligibility for means - tested public

assistance, on June 1, 2017 , DOC provided Ms. Mi lls with a

letter explaining the overpayment so that Ms. Mills could show

it to any of the agencies from which she receives benefits based

on her income. The letter made clear that Ms. Mills was in no

way responsible for the overpayment and offered to res pond to

any questions that other agencies might have about the incident.

7 . The June 1, 2017 , DOC letter confirmed that, as of that

date, Ms. MillsÓ year - to - date earnings statement was correct.

8 . At hearing, Ms. Mills testified that she was concerned

th at the overpayment might jeopardize her eligibility for

assistance from the Florida Department of Children and Families

(DCF). However, at hearing she presented no evidence that her

eligibility would, in fact, be affected.

9 . If in the future Ms. MillsÓ eligibility for assistance

from DCF is adversely affected by DOCÓs overpayment error, she

will have an opportunity at that time to contest DCFÓs

determination pursuant to the provisions of the Administrative

Procedure Act, chapter 120, Florida Statutes.

1 0 . DOC did not purposely overpay Ms. Mills, and the

amount of the overpayment was quickly recouped by DOC. DOC has

taken all reasonable steps to mitigate any potential effects of

the overpayment error.

11 . T he excess federal income tax withholding wil l be

recovered by Ms. Mills when she files her 2017 federal income

tax return.

12 . Other than the speculative effect on Ms. MillsÓ

eligibility for DCF assistance, Ms. Mills did not establish that

she had suffered injury in fact as a result of the overpaym ent

error.

13 . At hearing, and in her PRO, Ms. Mills was non - specific

about the relief that she was requesting. In her PRO, Ms. Mills

stated that she Ðrespects this courtÓs ability and duty to

determine an appropriate final order based on all information

related to this case.Ñ She went on to state that if there is a

monetary award, it should in no way be considered to be

additional income accruing to her.

14 . Ms. Mills failed to prove that she had suffered any

injury as the result of the DOC error. Thu s, even if the

undersigned was inclined to recommend monetary relief, there is

no basis in this record upon which to determine an appropriate

monetary award.

CONCLUSIONS OF LAW

15 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 & 120.57(1), Fla. Stat. (2017).

16 . Findings of F act shall be based upon a preponderance

of the evidence, except in penal or licensure disciplinary

proceedings , or except as otherwise provided by s tatute, and

shall be based exclusively on the evidence of record and on

matters officially recognized. § 120.57(1)(j), Fla. Stat.

17 . ÐThe general rule is that, apart from statute, the

burden of proof is on the party asserting the affirmative of an

issu e before an administrative tribunal.Ñ Young v. DepÓt of

Cmty. Aff . , 625 So. 2d 831, 833 (Fla. 1993); see also Beshore v.

DepÓt of Fin. Servs . , 928 So. 2d 411 (Fla. 1st DCA 2006) ; Fla.

DepÓt of Transp. v. J.W.C. Co., Inc . , 396 So. 2d 778 (Fla. 1st

DCA 1981 ) ; Balino v. DepÓt of HRS , 348 So. 2d 349 (Fla. 1st DCA

1977).

18 . Ms. Mills, as the party asserting the affirmative of

an issue, carries the burden of demonstrating her entitlement to

affirmative relief. She also bears the burden of establishing

t hat her substantial interests are, or have been, affected by

the challenged agency action. § 120.569(1), Fla. Stat. This

latter requirement is typically referred to as standing.

19 . Standing exists if a party can prove: (1) Ðinjury in

factÑ of sufficie nt immediacy, and (2) that the injury is of a

type the proceeding is designed to protect, commonly referred to

as the Ðzone of interestÑ test. N . Ridge Gen. Hosp., Inc. v.

NME Hosps ., Inc. , 478 So. 2d 1138, 1339 (Fla. 1st DCA 1985);

Agrico Chem . Co. v. De pÓt of Envtl. Reg. , 406 So. 2d 478, 482

(Fla. 2d DCA 1981). ÐThe first aspect of the test deals with

the degree of injury. The second deals with the nature of the

injury.Ñ Id.

20 . Ms. Mills did not establish that she had suffered an

injury as a result of the DOC error, or that she was likely to

suffer future injury of sufficient immediacy to convey standing.

Rather, the future injury of concern to Ms. Mills is

speculative, at best, and re mote in time. Accordingly,

Ms. Mills has failed to establish tha t the first prong of the

Agrico test has been met.

21 . Here, the record evidence does not establish a basis

upon which to recommend affir mative relief be awarded to

Ms. Mills, be it monetary or otherwise. Moreover, the

unrebutted testimony showed that D OC took immediate steps to

rectify its error and to mitigate any potential injury that

might flow from the error.

22 . Should Ms. MillsÓ fears become reality sometime in the

future, in the form of reduced benefits or loss of eligibility

for DCF programs or services as a result of the error, she will

have an opportunity to contest that agency determination in a

separate proceeding pursuant to chapter 120, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Petition filed by Nancy E. Mills be

dismissed.

DONE AND ENTERED this 18th day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Adminis trative 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 18th day of January , 2018 .

CO PIES FURNISHED:

Nancy Mills

191 Nursery Road

Monticello, Florida 32344

(eServed)

Maria Shameem Dinkins, Esquire

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

Julie L. Jones, Secretary

Department of Correction s

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

(eServed)

Ken ne th S. Steely, General Counsel

Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399 - 2500

(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.