STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN T NELSON, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2296

) CSC NO. 77-309

DEPARTMENT OF EDUCATION, )

DIVISION OF UNIVERSITIES, )

UNIVERSITY OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held at Room B-74, J. Wayne Reitz Union, Gainesville, Florida, at 1:00 P.M. on April 26, 1978, before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Allen T. Nelson

227 Northwest 7th Avenue Gainesville, Florida 32611

For Respondent: Ashmun Brown, Esquire

207 Tigert Hall University of Florida

Gainesville, Florida 32611

ISSUE

Whether the suspension of the Petitioner Nelson was based on just cause.

FINDINGS OF FACT

1. Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division.

   
   

2. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day.

   
   

3. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker.

4. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued.

   
   

5. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance.

   
   

6. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record.

   
   

7. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed.

8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed.

1. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.

   
   

   CONCLUSIONS OF LAW

   
   

2. Rule 22A-10.03(4) Disciplinary Actions.

   
   

   1. Each agency's program for handling disciplinary problems shall provide for the following types of disciplinary actions:

      1. Oral Reprimand

      2. Written Reprimand

      3. Change in Assignment

      4. Reduction in Pay

      5. Demotion

      6. Suspension

      7. Discharge

         Rule 22A-10.07(2) Decisions and Orders of the Career Service Commission. After hearing an appeal, the Career Service Commission shall:

         * * *

         (2) Issue a written order which may sustain, reverse, or alter the decision of the employing agency. The orders of the Career Service Commission may include, but not be limited to, the reinstatement of an employee, with or without back pay; removal of all references to the charges from the employee's personnel file; or other decisions deemed

         proper and necessary based on the circumstances of the appeal.

         
         

3. The agency had the authority to make rules and regulations and to handle disciplinary problems including uniform attendance and leave policies under Chapter 110 State Career Service System.

   
   

4. The evidence shows that the Respondent followed the proper procedure and that the measures taken in this matter were justifiable.

RECOMMENDATION

Sustain the decision of the Respondent University of Florida.

DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Allen T. Nelson

227 N.W. 7th Avenue Gainesville, Florida 32611

Ashmun Brown, Esquire

207 Tigert Hall University of Florida

Gainesville, Florida 32611

Mrs. Dorothy Roberts Career Service Commission

530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-002296

Orders for Case No: 77-002296