STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KENNIE W. McKAY, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1260
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Marianna, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on July 24, 1987. Respondent's proposed findings of fact and conclusions of law were filed on August 26, 1987. Petitioner's post-hearing submission took the form of an undated letter filed August 24, 1987. The recommended order treats the substance of the parties' contentions, and the attached appendix addresses respondent's proposed findings of fact by number.
The petitioner appeared at hearing on his own behalf.
Respondent is Sharon A. Cole represented by counsel: 2639 North Monroe Street
Suite 200-A
Tallahassee, Florida 32303
On March 16, 1987, Roy C. McKay, the superintendent of respondent's Arthur
Dozier School for Boys (Dozier School), wrote petitioner Kennie W. McKay, alleging that he had "been absent from ... [his] position of Houseparent without authorized leave on Tuesday, March 10, 1987, Friday, March 13, 1987, Saturday, March 14, 1937, and Sunday, March 15, 1987," and advising him that he was "[t]herefore ... deemed to have abandoned ... [his] position and to have resigned from the Career Service System in accordance with Section 22A- 7.010(2)(a), F.A.C. ..." Respondent's Exhibit No. 2.
In response to Respondent's Exhibit No. 2, which apprised Mr. McKay of his "right to petition the Department of Administration for a review of the facts in this case and a ruling as to whether the circumstances constitute an abandonment of position," he instituted the present proceedings. By order entered March 24, 1987, the Department of Administration accept[ed] the Petition and ... request[ed] the assignment of a hearing officer," in accordance with Section 120.57(1)(b)3., Florida Statutes (1986 Supp.).
ISSUE
Whether Kennie W. McKay should be deemed to have abandoned his position and to have resigned from the Career Service on account of his absence from work on March 10, 13, 14, and 15, 1987?
FINDINGS OF FACT
Some 18 years ago, when petitioner Kennie W. McKay began working at the Dozier School in Marianna, he received a copy of the employee handbook the Department of Health and Rehabilitative Services (HRS) published at the time. A more recent edition, dated June 1, 1986, provides, in part:
As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness, injury, exposure to a contagious disease, or the illness or injury of a member of your immediate family. Your supervisor should also be given an estimate of the length of the absence. Medical certification may be requested. Respondent's Exhibit No.
3, p. 19.
It was not clear from the evidence either that this language appeared in the edition Mr. McKay was furnished when he began work, or that he had ever seen the edition which came into evidence without objection.
On June 1, 1983, the Dozier School adopted "POLICY AND PROCEDURE #:035" requiring advance approval of leave, except when "illness or a bona fide emergency" occasions the absence. In that event, the policy specifies that
the employee must contact his/her supervisor as soon as possible. If he/she is unable to contact his/her immediate supervisor, the employee must contact the next higher level supervisor or someone in his/her normal chain of command. Leaving messages with the switchboard, coworkers, or other uninvolved staff will not be considered adequate notice. The employee is to notify his/her supervisor and only in situations where the employee is unable to contact the supervisor himself/herself will a call/contact from another person be acceptable.
* * *
(6) Employees displaying a pattern of unplanned absences may be suspected of abusing their leave privileges and may be subject to appropriate corrective action in accordance with HRSP 60-1 State Personnel Rules (Chapter 22A-8 and HRSR 60-51).
Respondent's Exhibit No. 5, pp. 1 and 2. HRS has not promulgated this "policy and procedure" as an administrative rule. Direct evidence did not establish to what extent, if at all, petitioner McKay was aware of its existence or its provisions. But his efforts to reach the man he thought to be his immediate supervisor, James R. Kersey, suggest he believed he was required to try to do so.
In his letter of February 23, 1987, the Dozier School's superintendent, Roy C. McKay, no relation to petitioner, advised petitioner McKay that Mr.
Kersey would become his immediate supervisor upon petitioner's demotion from carpenter to house parent. In part, the letter stated:
This is official notification that you are being demoted from Carpenter, position number 01082, to Houseparent, position number 01188. You are to report to Friendship House on the 10:00 p.m. to 6:00 a.m. shift, effective Friday, February 27, 1987, or the first day you return back to work. 1/ Your immediate supervisor will be Mr. James Kersey, Houseparent Supervisor I; and your days off will be Wednesday and Thursday.
Respondent's Exhibit No. 1. Like Mr. Kersey, Mr. James Pyles and Mr.
Jethro Pittman were house parent supervisors I assigned to Friendship House. Each supervised a different shift.
Houseparent supervisors I reported to Norman Harris, who reported to assistant superintendent Pate, who reported to superintendent McKay. On every shift, an administrative duty officer has campus-wide responsibility. The administrative duty officer is also in the chain of command.
Petitioner McKay did not learn until after he was told he no longer had a job that Mr. Harris was to be in the chain of command, because he did not see Mr. Harris' memorandum of March 10, 1987, until after March 16, 1987. In this memorandum, Mr. Harris advised:
YOUR IMMEDIATE SUPERVISOR WILL BE JAMES PYLES, HOUSEPARENT SUPERVISOR I.
YOUR NEXT HIGHER SUPERVISOR BILL BE ME, MR. NORMAN HARRIS.
Respondent's Exhibit No. 8.
Written communications addressed to petitioner McKay dated on and after March 10, 1987, were placed in "his box," but Superintendent McKay was aware that petitioner McKay did not see them on or before March 16, 1987.
Before the superintendent's letter of February 23, 1987, gave "official notice" of the demotion, the two Messrs. McKay and others met in the Dozier School's conference room, on February 20, 1987. Petitioner McKay told those present that he had a doctor's appointment in Columbus, Georgia on March 10, 1987. As the superintendent understood it, the doctor had earlier warned against petitioner's overexerting himself, even against his walking too far.
Everybody knew he was on leave on account of his medical condition at the time of the conference; he was, in fact, demoted because he was not physically able to discharge the duties of a carpenter. Evidently because he told the superintendent that he had a "sick slip through the ninth," the superintendent directed him to report on the tenth. Whoever drew the work schedule put him down as beginning his new assignment on March 9, 1987.
As it happened, somebody in the doctor's office in Columbus called petitioner McKay's wife on March 9, 1987, and rescheduled the appointment for March 11, 1987. Deciding not to report for work before seeing the doctor,
Kennie McKay telephoned the Dozier School on the tenth to let them know. Twice he reached Mr. Bridges, who was working the day shift as a house parent at Friendship House. He told Mr. Bridges he was not coming in to work that night. He asked each time to speak to Mr. Kersey. Each time Mr. Bridges told him Mr. Kersey was not there.
Although Friendship House is the most secure cottage at the Dozier School and the locus of the school's "intensive supervision program," which is designed to calm boys down who are "in an uproar," the work on the night shift is not physically demanding. The boys are supposed to be asleep, and a house parent can call for reinforcements if problems arise. The houseparent can lock himself in a "crime cage" out of reach of the inmates, and could do his duty, which is mainly to observe, on crutches, if necessary.
Nevertheless, when petitioner McKay visited the doctor in Columbus on March 11, 1987, he obtained a form from the doctor's office stating "out of work until next visit in 3 wks." Respondent's Exhibit No. 12. After he reached Marianna, he telephoned the Dozier School at 7:46 p.m. that evening. Charles Gardner, Jr., who was working as a house parent at Opportunity Cottage, took the telephone call. Mr. McKay told him he could not come to work that night, that he had been to see a doctor, that he had a doctor's excuse, and that he needed to talk to a night supervisor.
While they were talking, Luther L. Spurlock, a house parent supervisor II in charge of a cluster that did not include Friendship House, entered the room, and took the phone from Mr. Gardner, who handed it to him. Petitioner McKay told Mr. Spurlock, "I'll be in tomorrow with a doctor's slip for Danny." After the phone call was over, Mr. Spurlock said to Mr. Gardner, "I'm not McKay's supervisor," or words to that effect. A form filled out toward the end of the shift stated:
Kenny McKay called and said that he would be at the school tomorrow with a doctor slip to give Mr. Pate.
Everything went well tonight no major problems.
Respondent's Exhibit No. 10.
Mr. Spurlock did not tell the petitioner that he ought to notify anybody else about his continuing absence.
Kennie McKay had not been scheduled to work on March 11, 1987, in any event. His next scheduled work day was March 13, 1987. Respondent's Exhibit No. 7. On March 13, 1987, he telephoned the superintendent's office but, when told he was in a meeting, asked to speak to Bruce Gambill, Dozier School's business manager , instead. Mr. Gambill answers directly to the superintendent. He told Mr. Gambill "that he had been to the doctor and had a sick slip to be out of work." Respondent's Exhibit No. 11. Mr. Gambill asked him to bring a copy of the slip to the business office
for Workers Compensation purposes ... [and] instructed Mr. McKay to contact his supervisor concerning the sick slip and being out of work. [Petitioner] said he had tried to call, but there was no answer. [Mr.
Gambill] told him he needed to let his supervisor know about the sick slip.
Respondent's Exhibit No. 11.
Petitioner had telephoned that morning at 10:24 from Marianna, Petitioner's Exhibit No. 1, but he had not reached Mr. Pittman, the supervisor, who testified he might have been on an errand then. Whether Petitioner tried again to reach a supervisor after speaking to Mr. Gambill is not clear.
James Pyles, the man who, although petitioner did not know it at the time, became the latter's supervisor on March 10, 1987, asked superintendent Roy McKay's permission to use a state car about three o'clock that afternoon to find out if Kennie McKay was going to come to work. Mr. Pyles drove to Dothan, Alabama, where he found petitioner walking around without crutches in an establishment known as Shag's. He did not tell petitioner that he had been made his supervisor or suggest that, since he did not seem to need crutches, petitioner come to work. The following night, as well, Mr. Pyles saw Mr. McKay getting around without crutches. On that occasion, too, Mr. Pyles refrained from any discussion relating to work at Dozier School.
When Kennie W. McKay brought the doctor's slip, Respondent's Exhibit No. 11, to Dozier School on March 17, 1987, he was informed he no longer had a job.
CONCLUSIONS OF LAW
Under Rule 22A-7.010(2), Florida Administrative Code, HRS has the burden to prove that Kennie W. McKay failed to appear on three consecutive work days for which he did not have authorized leave. Counsel for HRS cites no statute or rule, nor any judicial or administrative decision in its proposed conclusions of law, but the letter superintendent McKay wrote petitioner McKay mentions Rule 22A-7.010(2), Florida Administrative Code, and formal administrative proceedings were instituted on the premise that this rule applied.
The rule creates a presumption, one that was held to be rebuttable in Clara M. Penney v. Department of Insurance, No. 85-1530 (DOA; January 31, 1986), that an employee absent without leave for three days has given up his job. The rule is intended to strike a "fair balance" between "swift replacement of ineffective public employees," Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982) and "job security and retention." Id.
In upholding Rule 22A-7.10B, as the abandonment rule was then numbered, against the challenge that it was a stratagem to deprive covered employees of a hearing to which they were entitled before the Career Service Commission, the court in Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978) pointed out that no such hearing was available to an employee who submitted a written resignation and stated:
While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some point at which the Division may be able to say that the employee is not returning,
process the paper work and refill the vacant position. Rule 22A-7.010B puts all Career Service employees on notice that absence without authorized leave for three consecutive days is tantamount to a formal resignation. The particular time period is less significant than the principle which provides for some term of absence being construed as a resignation. At 358.
HRS failed in the present case, however, to prove the predicate which would given rise to a presumption of abandonment.
When he was told he was to be demoted, Kennie W. McKay was on sick leave. This circumstance was discussed at the predetermination conference. The letter affording him official notification of demotion, which made his demotion "effective Friday February 27, 1987, or the first day you return back to work," 2/ also reflects the fact that he was on sick leave at the time. The evidence did not establish that the sick leave petitioner was on in February became unauthorized under applicable rules, as of March 10, 1987, or at any other time.
HRS' own policy requires an employee absent on account of illness or injury to notify his supervisor "[a]s soon as possible on the first day of absence." Respondent's Exhibit No. 3, p. 19 (emphasis supplied). As far as the evidence discloses, petitioner did so. HRS did not prove facts that gave rise to a duty on petitioner's part to communicate directly with his supervisor on March 10, 13, 14 or 15, 1987, whoever the supervisor may have been.
Sick leave differs from the emergency leave requested in Clara M. Penney v. Department of Insurance, No. 85-1350 (DOA; Jan. 31, 1986), and in Florida State University v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983), because emergency leave is discretionary. Unless a request for emergency leave is granted, an employee is not entitled to take emergency leave.
In a genuine case of illness, however, use of accrued sick leave credits is a matter of right. The prerequisite for sick leave is notice, and there is no requirement that any request be granted before leave begins. Paralleling HRS' policy and affording a legal basis for the policy, Rule 22A- 8.011(2)(d), Florida Administrative Code, provides:
Notification of absence due to illness, injury, or exposure to a contagious disease shall be given to the appropriate supervisor by the employee or the employee's representative as soon as possible on the first day of absence.
Again, as far as the evidence shows, petitioner McKay gave notification to the appropriate supervisor before the work day began on his first day of absence. HRS did not contend otherwise.
An employee who has taken sick leave must certify that he has done so on account of illness or injury, or for some other reason recognized by the rule. If the absence has lasted more than three days, the employer may, and, if the absence has exceeded ten consecutive days, the employer must, require medical certification, as well. Such certification often takes place after the illness and absence have come to an end. In cases of prolonged absence, "the
agency head shall [ordinarily] require further medical certification for each 30 consecutive days of absence ...." Rule 22A-8.011(2)(e)(4), Florida Administrative Code.
In the present case, petitioner McRay furnished medical certification on March 17, 1987, without, as far as the evidence shows, having been requested to, and did so before his return to work. HRS' proposed finding of fact No. 7 gives February 18, 1987, as the date of the earlier physician's statement. Less than 30 days separate these two dates.
Although HRS chose to proceed under the abandonment rule, the case HRS presented spilled over into evidence apparently meant to show that petitioner McKay had been malingering. The rules contemplate such a situation; and prescribe the procedure to be followed:
If 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 which shall be paid for by the agency.
Rule 22A-8.011(2)(3)(5), Florida Administra- tive Code.
HRS is entitled to a second medical opinion, which might be a better approach than sending another employee, apparently medically untrained, to spy on a suspected malingerer. The Public Employees Relations Commission would conduct any formal administrative hearing necessary to resolve factual disputes in such cases.
Resort to the abandonment rule is allowed only if an employee ... upon request by the agency head, refuses to comply with these [sick leave] rules." Rule 22A-8.011(2)(e)(6), Florida Administrative Code. The evidence did not show any failure on petitioner's part to comply with the rules governing sick leave, much less a refusal to honor a request by the agency head to comply with the rules.
Nothing in this record suggests that petitioner McKay intended in fact to abandon his job, or proved that his absence from work on March 10, 13, 14, and 15, 1987, was unauthorized under applicable rules.
It is, accordingly, RECOMMENDED:
That the Department of Administration rule that Kennie W. McKay has not abandoned his position with the Department of Health and Rehabilitative Services, and has never lost his membership in the Career Service.
DONE AND ENTERED this 28th day of September, 1987, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1987.
ENDNOTES
1/ Counsel or somebody using ink different from the ink used by the superintendent when he signed the letter has written "3-10" above the typewritten text of the letter.
2/ This wording raises the question, since he never did return, whether the demotion ever became effective. If the demotion never became effective, neither Mr. Kersey nor Mr. Pyles became petitioner's supervisor.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1260
Respondent's proposed findings of fact Nos. 1, 10, 11 and 15 have been adopted, in substance, insofar as material.
Respondent's proposed findings of fact Nos. 2 and 15 relate to subordinate matters.
Respondent's proposed finding of fact No. 3 has been adopted, in substance, insofar as material, except for the phrase was to report on March 10, 1987."
See Respondent's Exhibit No. 1.
The first two sentences of respondent's proposed finding of fact No. 4 have been adopted, in substance, insofar as material, but the remainder is immaterial.
The policy paraphrased in respondent's proposed finding of fact No. 6 is set out in pertinent part in the recommended order.
With respect to respondent's proposed finding of fact No. 7, the physician's statement only addressed his ability to work through March 9, 1987; it did not assert that he would be able to work on March 10, 1987.
Respondent's proposed finding of fact No. 8 is immaterial to the question of abandonment.
With respect to respondent's proposed finding of fact No. 9, Luther Spurlock was a supervisor at the school.
Respondent's proposed findings of fact Nos. 12 and 13 are immaterial as to the question of abandonment. They relate to HRS' malingering theory.
With respect to respondent's proposed finding of fact No. 14, the evidence snowed that he made considerable effort to notify the persons he thought were his immediate supervisors.
With respect to respondent's proposed finding of fact No. 16, it is not proper to terminate for abandonment when an employee is on sick leave.
With respect to respondent's proposed finding of fact No. 17, the superintendent so testified, but this, too, is immaterial.
COPIES FURNISHED:
Mr. Kennie W. McRay Post Office Box 1521 Marianna, Florida 32446
Ms. Sharon A. Cole
2639 North Monroe Street Suite 200-A
Tallahassee, Florida 32303
Adis Vila, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Augustus D. Aikens, General Counsel Department of Administration
530 Carlton Building Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Sep. 28, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 17, 1988 | Agency Final Order | |
| Sep. 28, 1987 | Recommended Order | Petitioner did not abandon his position and did not lose his membership with Career Services as a result of his absence from work March 10, 13-15, 1987. |
