18-004664 Shanace Isaac vs. Department Of Health Status: Closed Recommended Order on Thursday, March 7, 2019.

Summary: Petitioner did not meet her burden and is required to repay salary overpayment in the amount of $809.46.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHANACE ISAAC,

Petitioner,

vs. Case No. 18 - 4664

DEPARTMENT OF HEALTH,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judg e Yolonda Y.

Green of the Division of Administrative Hearings (ÐDivisionÑ) ,

conducted a formal hearing in this case on December 14, 2018 , in

Palatka, Florida.

APPEARANCES

For Petitioner: Shanace Isaac, p ro se

Post Office Box 101

Hastings, Florida 32145

For Respondent: Riley Michelle Landy, Esquire

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner was overpaid

in the amount of $809.46; and, if so, whether she should be

requ ired to repay that amount to Respondent.

PRELIMINARY STATEMENT

By certified letter dated M ay 30, 2018, Florida Department

of Health (ÐRespondentÑ or ÐDepartmentÑ) notified Shanace Isaac

(ÐPetitionerÑ or ÐMs. Isaac Ñ), a former Department employee,

that she owed $ 809.46 because she had received salary

overpayments. Petitioner disputed the Dep artmentÓs proposed

action on July 2 , 2 018, an d requested a formal administrative

hearing. On September 6, 2018, Respondent referred this case t o

the Division for assignment of an administrative law judge and

the case was assigned to the undersigned.

The undersigned initially scheduled this matter fo r

November 8, 2018. Petitioner, however, did not appear due to

misinformation regarding the hearing location. This matter was

subsequently rescheduled for December 14, 2018.

Pursuant to notice, the hearing convened as scheduled. At

the hearing, Petiti oner testified on her o w n behalf and called

no witnesses. Petitioner did not present any exhibits.

Respondent presented the testimony of two wi tnesses: Sarah

Caron, human r esources m anager for the northeast r egion for the

Department of Heal th ; and Catrin a Anderson, a personnel

tech nician III with the Florida Department of Health in Alachua

County . RespondentÓs Exhibits R - 1 and R - 2 were admitted into

evidence.

The parti es requested that the hearing b e transcribed. The

one - volume o fficial Transcript was filed with the Division on

February 8 , 2019. The p arties each timely filed Propo sed

Recommended Order s , which have been considered in preparation of

this Recommend ed Order .

Except as otherwise indicated, citations to the Flori da

Statutes refer to the 201 7 version, which was in effect during

the time the alleged overpayment was made.

FINDING S OF FACT

1. At all times material to this matter, Petitioner was a

career servic e employee of Respondent until h er separation in

October 2018 .

2. Petitioner went in to labor unexpectedly i n

December 2017 , and as a result, she began maternity leave.

Petitioner was not present at work and did not submit a

timesheet for the timefram e of December 29, 2017 , through

July 2, 2018. Petitioner testified that she was unable t o

submit her timesheets electronically and for this reason,

someone else submitted them on her behalf. The evidence

presented at hearing did not show wh o submitted her timesheets.

3 . By May 23 , 2018, Petitioner had exhausted all of her

annual, sick, an d donated leave.

4 . Once an employee of Respondent no longer has sick leave

remaining, annual leave is used to cover any shortages of sick

leave. An employee may use donated leave to cover any

shortages. Once an employee has exhausted annual, sick, and

donated leave, the employee cannot be paid for additional time

taken as leave . The additional time during leave is considered

Ðleave without payÑ (ÐLWOPÑ).

5 . Petitioner was placed on LWOP from March 23, 2018 ,

through July 2, 2018 , because she had exhau sted all of her

leave.

6 . Although Petitioner was on LWOP during the pay period

of May 4 , 2018 , through May 17, 2018, a pay warrant for 80 hours

of work was inadvertently issued on May 25, 2018 , for that pay

period. Consequently, Petitioner was overpaid $809.46 .

7 . Petitioner was not responsible for the overpayment.

She did not submit her timeshee ts and , thus, did not falsify

them . Petitioner testified that her supervisor verbally advised

her that she had received donated leave, but she could not

recal l the amount. Petitioner also did not offer any written

representation from her supervisor or otherwise regarding her

leave.

8 . The overpayment resulted because Petitioner's timesheet

for LWOP for the pay period of May 4, 2018 , through May 17,

2018 , was not timely approved.

9 . Upon discovery of this error, RespondentÓs hum an

resources office conducted a manual audit of PetitionerÓs leave.

Ms. Anderson completed the leave audit and discovered that

Petitioner had been overpaid for the May 4, 2018 , throu gh

May 17, 2018 , pay period.

10. O n May 30, 2018 , the Department sent Petitioner a

certified letter requesting the overpaid amount of $809.46.

11 . Petitioner became aware of the error when she received

the DepartmentÓs letter. PetitionerÓs pay was trans mitted to

her bank account electronically via direct deposit. However,

she was not monitoring her bank account closely and did not

immediately realize that she had been erroneously overpaid.

12 . At the time of the final hearing, Petitioner had not

paid t he overpayment. Petitio ner stated she could only pay

$40 per month to repay the overpayment.

CONCLUSIONS OF LAW

13 . The Division has jurisdiction over the subject matter

and the parties to t his action pursuant to section 1 20.57(1),

Florida Statutes (2 018 ).

14 . The party seeking to prove the affirmative of an issue

has the burden of proof. Fla. DepÓt of Transp. v. J.W.C. Co. ,

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

15 . The party seeking to prove this type of case must do

so by a preponderance of the ev idence. § 120.57(1)(j),

Fla. Stat.

16 . Thus, Petitioner has th e burden of proving by a

preponderance of evidence that she is not required to repay the

overpaid amount .

17 . Ð Each agency shall keep an accurate record of all

hours of work performed by eac h employee, as well as a complete

and accurate record of all authorized leave which is approved. Ñ

§ 110.219(4), Fla. Stat.

18 . To determine the process for overpayment made in

error by an agency, section 110.1165 , Florida Statutes,

provides:

(1) An ag ency of the executive branch,

including the State University System,

shall establish procedures for the receipt,

consideration, and disposition of a claim

regarding pay or benefits brought by an

employee when that employee is damaged as a

result of being p rovided with erroneous

written information by the employing agency

regarding his or her pay or benefits, and

the employee detrimentally relies upon such

written information. In order to qualify

for the relief provided by this section,

the employeeÓs relia nce on the

representation must have been reasonable

and based only upon the written

representations made by those persons

authorized by the agency head to make such

representations. Furthermore, the

erroneous calculation and payment of an

employeeÓs salar y, wages, or benefits is

not among the written representations which

will trigger relief under this section.

(2) An agency of the executive branch,

including the State University System, is

authorized to take such action as may be

appropriate to provide a remedy for an

employee concerning his or her claim

regarding detrimental reliance on erroneous

written informati on provided by the

employing agency relating to pay and

benefits, provided such remedy is within

the purview of the agencyÓs authority.

19 . Here, the evidence demonstrates that Petitioner was

overpaid in the amount of $809.46 because the Department did

not approve her LWOP timesheet before the warrant issue date

(May 25, 2018) .

20 . Despite PetitionerÓs claim that she should not be

required to repay the overpayment because it was not her fault,

she did not offer any evidence to support her position tha t she

is entitled to ke ep the funds that Respondent overpaid to her.

21 . The evidence p resented in this case does not show that

Petitioner was provided any erroneous written representation

regarding her leave . Her supervisorÓs purported (and

unsupported) verbal representation is insufficient under Florida

law. Thus, Petitioner has not produced sufficient evidence that

she should be exempt from the requirement to repay the overpaid

amount.

22. Based on the foregoing , Petitioner did not meet her

burden of proof and is required to repay the Department $809.46.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that th e Department of Health enter a

f inal Order requiring Shanace Isaac to repay Respondent $80 9.46.

DONE AND ENTERED this 7th day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 7th day of March , 2019 .

COPIES FURNISHED:

Shanace Isaac

Post Office Box 101

Hastings, Florida 32145

(eServed)

Riley Michelle Lan dy, Esquire

Department of Health

Bin A - 02

5052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Shannon Revels, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

(eServed)

Louise Wilhite - St Laurent, Interim General Counsel

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399

(eServed)

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

(eServed)

N OTICE 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 i n this case.