STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDITH A. CHAKY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1232

) DOE, DIVISION OF UNIVERSITIES, ) UNIVERSITY OF FLORIDA AND )

CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held at Room B-71, J. Wayne Reitz Union, Gainesville, Florida, at 2:00 P.M. on September 13, 1977, before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel T. O'Connell, Esquire

33 North Main Street Gainesville, Florida 32601

For Respondent: Ashmun Brown, Esquire

207 Tigert Hall University of Florida

Gainesville, Florida 32611

ISSUE

Whether the suspension of the Appellant Chaky was based on just cause.

FINDINGS OF FACT

1. Judith Chaky, Appellant, is employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee agricultural technician in the Poultry Science Department of the institute's Division of Food and Agriculture Sciences.

   
   

2. On or about March 21, 1977, when asked to make arrangements to make good a check passed by the Appellant at the Reitz Union, which had been returned for insufficient funds, Appellant used profanity, became abusive and spoke in a loud voice to Mrs. Cynde Folks, am employee at the Reitz Union.

   
   

3. Subsequent to the March incident and upon inquiry as to her plans with respect to paying the service charge on the same returned check, Appellant made abusive comments to Phil Chaney, a black employee.

4. In May of 1977, in response to a request from David M. Bickford of the Office of Internal Control to pay her indebtedness to the State, Appellant went to his office with the Five Dollars ($5.00) she owed as a service charge in pennies. She used abusive and profane language to Mr. Bickford and threw the pennies across his desk.

   
   

5. In response to her Employee Performance Evaluation dated November 10, 1976, a "satisfactory" evaluation, she stated:

   
   

   "I agree with the rating on attitude and cooperation because I tend to object to poor management techniques and would rather be rude than quiet."

   
   

   The evaluation as to her attitude and cooperation was "occasionally uncooperative." She had previously been counseled and received a letter from the employer in regard to excessive tardiness.

   
   

6. In July, 1977, Appellant received a written reprimand for having violated the rules by bringing a dog to work after having been requested not to do so.

   
   

7. The evidence submitted shows Appellant fails at times to follow rules governing the conduct of employees. She admitted at the hearing that she used malicious, profane and abusive language and that she went to some trouble to gather the pennies and then threw them on the desk of Mr. Bickford. She stated she paid the service charge with pennies as an intentional protest act. Her language was vulgar.

   
   

   CONCLUSIONS OF LAW

   
   

8. Chapter 22A-10.03. (Division of personnel; governing disciplinary actions, grievances, and appeals) Florida Administrative Code, provides as follows:

   
   

   "Disciplinary Actions.

   1. Each agency head shall establish rules and procedures which will insure timely and equitable disposition of actions determined to be necessary in dealing effectively with employee deficiencies and breaches of good conduct.

   2. In order to have an effective program

      for handling disciplinary problems, each agency should make available to all employees clearly defined agency objectives, work performance standards, standards of conduct, and other policies which are to be applicable in a given work situation.

   3. Each agency's program for handling disciplinary problems shall include standard ranges of penalties for various types of work deficiencies and conduct offenses, as well as review procedures which will insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar situations."

9. The University of Florida promulgated the following guidelines:

   
   

   "Offenses on the Job. . . Malicious use of

   profane or abusive language to others

   First Offense. . . . . . .Oral reprimand Second Offense. . . . . . Written reprimand

   Third Offense. . . . . . .One Week's suspension Fourth Offense. Dismissal"

   
   

   The rules and the foregoing guidelines give both the employers and the employees a standard which can be applied in particular cases. These guidelines are to be used to judge each case on its merit so that "all supervisors are being reasonably consistent in taking disciplinary action against employees involved in similar situations." Under the fact of the subject case the conduct of the Appellant was of such a nature that the three (3) day suspension was a lenient disciplinary action which could and perhaps should have resulted in a week suspension.

   
   

10. It would be unreasonable to say that an employer would have to busy himself with orally reprimanding an employee for each breach of conduct and then for each second offense write out a reprimand before an employee could be suspended, particularly when the employee has a history of violating the rules of the employer.

    
    

11. With the multitude of offenses that can be committed by an employee that are self evident and are well known to all employers and employees, technical adherence to each guideline would be such a waste of both employer and employee time that government could not function efficiently.

    
    

12. The supervisor taking the disciplinary action must utilize good judgment in light of all available facts in each case. The short three (3) day suspension of Appellant should be viewed here as a positive method to strengthen and a good faith attempt to improve the conduct of this employee.

    
    

13. Competent substantial evidence exists to sustain the action of the agency and "just cause" for discipline of Appellant is evident. c.f. State of Florida, Department of Administration, Office of Adm. Serv. v. Hunter, 323 So.2d 24; Board of Regents v. Hopkins, 312 So.2d 775.

RECOMMENDATION

Affirm the action taken by the Appellant, University of Florida.

DONE and ORDERED this 23rd day of November, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1977.

COPIES FURNISHED:

Mrs. Dorothy Roberts Appeals Coordinator

Department of Administration

530 Carlton Building Tallahassee, Florida 32304

Daniel T. O'Connell, Esquire

33 North Main Street Gainesville, Florida 32601

Ashmun Brown, Esquire

207 Tigert Hall University of Florida

Gainesville, Florida 32611

Docket for Case No: 77-001232

Orders for Case No: 77-001232