The Department of Administration accepted the petition and elected to request the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the formal hearing. This cause came on for final hearing on February 6,
1986.
Prior to the commencement of the final hearing, the Petitioner indicated that she desired to be represented in this case by a non-attorney representative, Kathryn L. Ward. Upon a diligent inquiry of Ms. Ward under oath and on the record, Ms. Ward was authorized to appear in the administrative proceeding. See Rule 221-6.08, F.A.C. By mutual agreement between the parties, the Respondent presented its case first. The Respondent called the following witnesses: Stephen D. Moon, Manager of State Toll Operations, Bureau of Toll Facilities; Robert L. Harlett, Sr., Regional Tolls Manager; and Leo D. White, Tolls
Facility Manager, Mathews Bridge toll facility. In addition, Respondent's Exhibits 1-5, 7 and 8 were duly offered and admitted into evidence. The Petitioner testified in her own behalf and called the following witnesses: Janie M. Irwin, Toll Collector, Fuller Warren Bridge toll facility; Ruby L. Hall, Supervisor, Hart Bridge toll facility; Rose J. Collins, Supervisor, Mathews Bridge toll facility; Loretta S. Brown, toll collector, Mathews Bridge toll facility; and Juanita McKnight, the Petitioner's mother. Petitioner's Exhibits 1 and 2 were offered and duly admitted into evidence.
The Petitioner submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence adduced and the entire record herein, I hereby make the following findings of fact:
During the times material hereto, the Petitioner, Brenda Washington, was employed within the Career Service of the State of Florida as a toll collector at the Mathews Bridge toll facility in Jacksonville, Florida.
Mr. Lou Hazlett is the regional manager in charge of toll operations in the Jacksonville area. Five different toll facilities, approximately 300 permanent employees and 200 part- time employees are included within the ambit of the Jacksonville Region. All toll facilities are operated on a 24 hour basis.
Each toll facility has a manager and a person who serves as on-board supervisor. The supervisor is responsible for management of toll collectors in the lanes, providing change money to the various lanes, filling out reports and handling problems with the traveling public.
on June 4, 1985, Mr. Hazlett presented Petitioner with a written memorandum which was written by Mr. Moon, Manager of
the State Toll Operations and addressed to the Petitioner. The subject of the memorandum was "Requirements to improve job performance." Paragraph three (3) of the memorandum read as follows:
"(3) (Communication) If for any reason you are unable to work, you must notify your immediate supervisor or Mr. Leo White,: Facility Manager. Accidents must be immediately reported. Your (sic) must maintain on file with us, your latest address and telephone number. Doctor's certifications must be provided in advance.
Minor absences (less than 3 days) must be called in on a day to day basis. Any medical absence over three (3) days requires a doctors statement to return to work . . ."
Mr. Leo White, Manager of the Mathews Bridge toll facility was also present in Mr. Hazlett's office when Petitioner was given the memorandum. After explaining the memorandum to Petitioner, Mr. Hazlett instructed her that she was required to call either him or Mr. White if she was going to be absent. Mr. Hazlett informed Petitioner that, contrary to the written memorandum, she was not to notify her immediate supervisor of an absence, but was required to notify only Mr. White or himself, Mr. Hazlett.
The last day that Petitioner worked at the Mathews Bridge toll facility was July 26, 1985. On that day, the Petitioner worked approximately two (2) hours and went home sick.
The Petitioner returned to the job site on August 1, 1985 in an attempt to request an indefinite leave of absence. The Petitioner advised Frankie Bowe, one of her supervisors, of her scheduled hospitalization on August 2, 1985. At the same time, the Petitioner completed several extended leave requests. Between August 2 and August 31 the Petitioner was hospitalized and released intermittently.
Sometime in August 1985, Mr. Hazlett instructed Mr. White to post a notice in each of the toll booths at the Mathews Bridge stating that if Petitioner called in concerning an absence, the call must be referred to Mr. White or Mr. Hazlett personally. After the notice was posted, the Petitioner called the bridge on several occasions, but was told by the supervisors that she must speak directly with Mr. White or Mr. Hazlett.
On August 27, 1985, Petitioner called Mr. White and told him that she was in the hospital and that she had just had surgery. Petitioner informed Mr. White that she would probably be released on August 31, 1985.
Petitioner was released from the hospital on Sunday, August 31, 1985. The Petitioner's next regular workday was scheduled for Tuesday, September 3, 1985. On that day, Petitioner was placed in a protective custody type home for abused spouses by the police because she had been threatened by her husband. Petitioner remained in the protective home until September 4, 1985. On September 5, 1985, Petitioner was still convalescing from her illness and went to her mother's home.
On September 5, 1985, Petitioner called the Regional toll office and asked to speak with Mr. Hazlett, but was told by a secretary that he was not in. Petitioner left a message for Mr. Hazlett. Petitioner called Mr. Hazlett again on September 6, 1985; later that day, Mr. Hazlett returned her telephone call, but she was not in.
On September 11, 1985, Petitioner went to her scheduled checkup and obtained a statement from her physician indicating that she could return to work on September 17, 1985. After obtaining the statement, Petitioner went directly to Mr. Hazlett's office and provided his secretary with the original and Petitioner retained several copies.
On September 16, 1985, Petitioner met with Mr. Hazlett at this office. Mr. Hazlett told Petitioner that he would let her know later whether "Tallahassee" would want her to begin in the middle of a pay period or whether she should wait until the beginning of the pay period.
On September 17, 1985, Petitioner called the office of Mr. John Berry, Chief of Bureau Toll Facilities, in Tallahassee, Florida. The Petitioner was informed that she would be receiving a letter in a few days concerning her employment.
At some point between September 19th and October 6, 1985, Petitioner received a letter dated September 10, 1985 from Mr. John Berry stating that she had abandoned her position. The letter stated in part as follows:
". . . From July 26, 1985, when you worked a total of two (2) hours, you have not returned to work. During this time, it was reported that you were admitted and released from the hospital on more than one occasion. You were clearly instructed in my May 30, 1985 memorandum that ". . . minor absences (less than three days) must be called in on a day to day basis. Any medical absence over three
(3) days requires a doctor's statement to
return to work." You failed to follow this instruction by not calling in as required or furnishing a doctor's statement during any part of the past forty-eight (48) day period.
You could have forwarded to us a doctor's statement during this period of time.
Records indicate that on Sunday, August 31, 1985 you were discharged from the hospital. Sunday was a day off for you and Monday, September 2, 1985 was Labor Day which was a holiday. We received no notification from you on September 3, 4, 5, 6. [sic] This is a period in excess of three (3) days, which in accordance with Department of Administration Rule 22A-14.01(1), constitutes an abandonment of position."
All toll facility employees are provided with a copy of the Department of Transportation Employee Handbook, page 12 of the handbook concerns reporting absences and states in pertinent part as follows:
If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time. This will allow the Department to effectively schedule your work assignments on a daily basis.
When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed.
If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work.
If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time.
If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence. Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of the proceeding.
Section 120.57(1), Florida Statutes (1983).
Rule 22A-7.10(2)(a), F.A.C. provides in pertinent part that:
"(2) Abandonment of Position
An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to, have abandoned the position and to have resigned from the Career Service. . ."
Likewise, Rule 22A-14.01(1), F.A.C. reads as follows:
"(1) Abandonment of Position - The unauthorized absence by an employee from the employee's position for 3 consecutive work- days."
Rule 22A-7.10(2)(a), F.A.C. further provides that an employee who separates under such circumstances shall have the right to petition "for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position. The term "unauthorized absence "is not defined by statute nor rule and, therefore, must be given its ordinary meaning and interpretation.
The Petitioner was instructed by her superiors in the memorandum of May 30, 1985 that ". . .doctor's certification must be provided in advance. . .. Minor absences (less than three days) must be called in on a day to day basis. Any medical absence over three (3) days requires a doctor's statement to return to work." The Petitioner's absence was approximately 48 days, and therefore, clearly in excess of 3 days. Thus, under the circumstances presented herein, the Petitioner was required to present a doctor's statement in order to return to work. The directive that "doctor's certifications" must be provided in
advance appears to be improper and contrary to the provisions of Rule 22A-8.11(2), F.A.C. Rule 22A-8.11(2)(d)(2), F.A.C.
provides in part that:
". . . If there is a pattern of absence by an employee; such as consistent absence on the day preceding or following the employee's regular days off or absence on the same day of each week or month, the agency head may develop a policy for controlling such patterns of absence. The policy must be reviewed and approved by the Department of Administration prior to implementation by the agency." (Emphasis added)
The Respondent did not offer into evidence any proof that the Department of Administration reviewed and approved its modification of the general sick leave request guidelines in Rule 22A-8.11(2), F.A.C., which rule does not require submission of medical certifications in advance. Therefore, any requirement that Petitioner submit a medical certification in advance must be viewed as an improper order to her. In its letter of September 10, 1985, Respondent charged that no notification of absence was received from Petitioner on September 3, 4, 5 or 6. The letter further went on to state that such lack of notification for the days previously stated constituted an abandonment of position.
However, on September 11, 1985, the Petitioner presented to the regional toll office a medical certification from her physician indicating that she would be able to return to work on September 17, 1985. The medical sufficiency of the statement is not at issue. The agency was not under any duty to accept the medical certification submitted by the Petitioner. If the medical certification furnished by the employee is not acceptable to the agency, the agency may require the employee to submit to a medical examination which shall be paid for by the agency. See Rule 22A-8.11(2)(d). The Respondent did not reject the medical certification provided on September 11, 1985 nor request that the Petitioner submit to a medical examination. Because the Petitioner's absence was a continuing one in excess of 3 days, she was not required to call in on a daily basis. Therefore, her absence would have only been unauthorized during the September 3 thru 6 period had she failed to produce a doctor's statement.
Furthermore, the evidence established that Petitioner called Mr.
Hazlett's office on September 5, 1985 but left a message because he was not in the office at the time.
Because the Petitioner's absence was a continuing one which began before September 3, 1985, the initial date of unauthorized absence alleged, the Respondent can find no solace in Rule 22A-8.11(2)(c) which provides in part that "notification
of absence due to illness . . . shall be given to the appropriate supervisor by the employee or employee's representative as soon as possible on the first day of absence." Although the record was clear that Petitioner left work ill on July 26, 1985, there was no evidence presented by either side concerning the circumstances of her departure, or if appropriate notice was given. Likewise, the Department of Transportation's Employees Handbook provides that: "If you [employee] do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence.
Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given." However, there was no testimony presented concerning what Petitioner indicated to the Respondent on her first day of absence, which was July 26, 1985. There was no evidence showing that Petitioner was required to call in on each successive day pursuant to the mandate of the employee handbook.
The pertinent Career Service Rules amply provide a vehicle for an agency to rid itself of an ineffective public employee who is malingering and feigning illness. The employer may require medical certification of the employee's illness before authorizing any additional sick leave in excess of 3 workdays in any 30 calendar day period. After 10 consecutive days of the absence, the employee is required to submit to the agency head a medical certification from the attending physician before any additional use of sick leave credits can be authorized for the employee. If the employee continues to be absent, the agency head may require further medical certification for each 30 consecutive days of absence. If, at any time, the medical certification furnished by the employee is not acceptable to the agency head, the agency head may require the employee to submit to a medical examination paid for by the agency. If the employee is then medically evaluated as fit for work, the agency head may disapprove further use of sick leave credits and order the employee to report to work or be placed on unauthorized leave without pay. After an unauthorized leave of absence for 3 consecutive work days, the agency head may consider the employee to have abandoned the position and resigned from the Career Service. See Rules 22A-8.02(5) and 8.11(2), F.A.C.
The Respondent has failed to demonstrate that Petitioner abandoned her position within the Career Service. However, while it is the legal conclusion of the undersigned that Respondent has failed to technically prove the charge of abandonment, it is further concluded that the charge was occasioned by Petitioner's own negligence in failing to keep her employer adequately informed of her situation and her failure to ascertain the Respondent's position in regard to her absence. On
