STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TARPON SPRINGS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3005

)

JACK SCHENKEL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tarpon Springs, Florida, on August 11, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether the Respondent should be dismissed from his position as a fire fighter/emergency medical technician with the City of Tarpon Springs because of the alleged misconduct outlined in the city's Notice of Intent to Dismiss.

Petitioner: Nicholas J. Sargent, Esquire

Sargent, Repka, and Covert, P.A. 2963 Gulf-to-Bay Blvd., Suite 320

Clearwater, Florida 34619

Respondent: Robert F. McKee, Esquire

1724 East 7th Avenue Tampa, Florida 33605

BACKGROUND INFORMATION

On April 27, 1988, Al Carr, Assistant Fire Chief for the City of Tarpon Springs, (City), by letter, advised the Respondent, Jack Schenkel, that his employment with the City had been terminated due to Respondent's abuse of sick leave on April 18, 1988, and his previous work record. Respondent requested a hearing on the proposed termination and the matter was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer. The case was referred to Hearing Officer K. N. Ayers who on June 23, 1988, set the case for hearing on August 11, 1988, at which time it was held as scheduled by the undersigned.

At the hearing, Petitioner presented the testimony of Lt. Dennis L. Jennings, supervisor of B shift with the fire department, (Department); Richard

T. Lopes, a fire fighter with the Department; Alwyn J. Carr, Assistant Fire Chief; Thomas Farrell, a Department Lieutenant; and Arlene Evans, personnel director for Medic-One. Petitioner also introduced Petitioner's Exhibits 1, 2, and 4 through 7. Respondent testified in his own behalf, and presented the testimony of Assistant Chief Carr, and David M. Book, a police officer with the Treasure Island Police Department. Respondent introduced Respondent's Exhibits A and B.

A transcript of the hearing was furnished and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On April 18, 1988, Respondent, Jack Schenkel, was employed as one of fifteen fire fighter/emergency medical technicians, (EMT), with the Tarpon Springs Fire Department. He was scheduled to work on C shift which was to start at 7 am and extend for 24 hours until 7 am, April 19, 1988. In accordance with normal procedure, he then would have been off for 48 hours before his next shift.

   
   

2. At approximately 1:30 am on April 18, Lt. Dennis L. Jennings, B shift supervisor, was on duty at the main fire station, when he received a phone call from the Respondent who indicated he had had a serious quarrel with his girl friend. Respondent indicated she was drunk and had "trashed" his house and he needed to stay at home to insure his possessions were not ruined. Respondent's actual request was for a personal day off, and when Mr. Jennings indicated there was no such thing for City employees, Respondent asked for a vacation day. It is and has been, for as long as Respondent has worked with TSFD, Department policy that vacation pay can only be authorized by personnel above the grade of Lieutenant, and while the actual paper request may, at times, be signed after the fact, the authorization must be received prior to departure so that the Department has time to rearrange schedules to accommodate the absence. When Mr. Jennings advised Respondent of this, though evidence indicates he was aware of it, Respondent indicated he had had no sleep and as a result, Mr. Jennings suggested that Respondent take a day of sick leave. However, Mr. Jennings also reminded Respondent that in accordance with an order issued in writing by the Fire Chief in 1979 to the effect that requests for sick leave must be called in between 6 and 6:30 am of the day in question, prior to the start of the duty day, he would have to call in during the prescribed time to arrange for his sick leave. Though a Lieutenant can take the information, he does not have the authority to approve the leave. As a matter of fact, however, bona fide sick leave, called in in conjunction with the Chief's order, at an appropriate time, is never disapproved.

   
   

3. Respondent did not call in between 6 and 6:30 am on April 18 to request sick leave as he had been instructed to do by Lt. Jennings. Mr. Lopes, also a fire fighter, who was scheduled to work on the same shift, arrived at approximately 6:50 that morning. When he spoke to Lt. Jennings to ask where he would be assigned, Jennings advised him that Respondent had not come in and Lopes would fill his slot. Jennings told Lopes what Respondent had told him concerning the house and like matters. At that point, Lopes advised Mr. Jennings that Respondent did not own the house where he was living nor was he the prime tenant. To verify this, Jennings telephoned Respondent at home at approximately 7:05 am. When Respondent answered the phone and Jennings asked why he had not reported for duty, Respondent indicated that he intended to take a sick day. Jennings reminded him that he had not called in properly and told him that if he took the time off, there would be repercussions. According to Jennings, Respondent did not seem concerned about that possibility, replying something like, "Oh well, whatever."

   
   

4. Lt. Jennings logged this call in and reported the situation to his relief, Lt. Parker, the incoming shift lieutenant. He also discussed the matter the following morning with Assistant Chief Carr and at Carr's request, submitted a written statement of what had happened.

5. According to the City regulations, sick leave, such as was requested by Respondent here, can be used for situations where the employee himself is sick or disabled; where the employee has an appointment with a physician or dentist; where the employee in under medical quarantine; and as a result of a death in the immediate family of the employee, in which case, only four days leave are authorized. Girl friends are not included within the definition of "immediate family." In the opinion of Mr. Carr, sick leave is not authorized for circumstances such as were described by Respondent in his reasons for not coming in. Under the terms of the City regulation, taking a sick day for a reason not within the above-described categories, constitutes grounds for discipline.

   
   

6. When Respondent came to work on April 21, 1988, Chief Carr called him in and asked for an explanation of why Respondent had failed to report for duty on April 18. In response, Respondent told him the same story he had related to Lt. Jennings. In the course of their conversation, Carr advised Respondent that he, Respondent, knew from prior incidents that sick leave was not appropriate under these circumstances. Respondent replied that his girl friend was sick and he was concerned about her safety, and showed Carr a copy of the police report regarding the incident on April 18 which reflected that she was highly intoxicated. Carr advised Respondent that the circumstances did not justify or authorize sick leave, and that action would be taken to terminate him from employment. With that, Respondent left.

   
   

7. After Respondent departed, Chief Carr reviewed his personnel records in detail and saw the number of sick days Respondent had taken since he began work with the Department, as well as his prior disciplinary record. Respondent's personnel record shows that in the years he has been an employee of the City, he has taken 44 sick days accounting for 1,056 hours of sick leave. He then prepared a memorandum outlining it which he forwarded to the City personnel director who concluded that termination was appropriate.

   
   

8. Respondent's personnel records reflect the following actions:

   
   

   1. Memorandum 7/82 from Respondent's shift leader indicating he arrived 2 hours 9 minutes late for work. When questioned, he related his alarm did not go off due to a possible power failure.

   2. Memorandum 8/19/82 from Respondent's supervisor reflecting he was again late for work by 1 hour 45 minutes.

   3. On 2/7/83, Respondent called in for sick leave at 6:40 am, 10 minutes after the close of the call-in window. Respondent was given a written reprimand.

   4. On 3/23/83 Respondent reported for work at 7:11 am without calling in. He indicated he had a flat tire. He was ordered to take a one day suspension without pay.

   5. On 5/2/83 Respondent was found asleep on duty with earphones on his head, a violation of rule 5, Section 4, Civil Service Rules and Regulations of the City of Tarpon Springs. For this offense, Respondent was given a warning.

   6. On October 27, 1983, Respondent was warned and counseled regarding the prior discrepancies in his job performance including the incident involving his sleeping on duty and his 17 incidents of sick leave within a relatively short period.

   7. On October 7, 1985, Respondent was again counseled on his excessive use of sick days which then amounted to 26 despite a counseling on the matter in December, 1984 and in October, 1983.

   8. On February 7, 1986, Respondent was disciplined for calling in at 6:48 am, on February 4, 1986, outside the window for sick leave call in. He was given a written warning and a one day suspension without pay.

   9. On August 7, 1987, Respondent called in sick at 6:17 am which was within the parameters of the Chief's order. As is the Department's policy, however, the Lieutenant on duty called back several minutes later to check on the employee, and found that Respondent was not sick.

      In fact, he had left to go to the store to pick up a part for the truck on which he was working. Since this constituted an abuse of sick leave, he was given a three shift suspension without pay.

   10. On January 28, 1988, Respondent was counseled for poor report writing and advised to take greater care in doing so. Even after two warnings to this effect, his reports were still incorrect and

       incomplete and he was given a written warning.

       
       

9. Chief Carr is of the opinion that Respondent's improperly using sick days, and his failure to call in to request sick leave on time, demonstrates a disregard for the City's leave program and regulations. After the incident on April 18, Chief Carr had a report prepared analyzing Respondent's sick leave from the beginning of his employment with the Department in 1982. This report showed a pattern wherein Respondent would work one shift, do overtime and exchange days with other fire fighters so he could work two days in a row, and thereafter take several sick days in a row. It was apparent from this analysis that Respondent was manipulating the sick leave process for his own benefit and the testimony of Ms. Evans that he was moonlighting with Medic-One, an ambulance company in Pinellas County, on some of the days he had called in sick, tends to support this conclusion.

   
   

10. Under the terms of the Personnel Rules of the City of Tarpon Springs, a fire fighter earns 15 days sick leave per year, which, if not used, can be carried over to succeeding years. Chief Carr has not had a sick leave analysis prepared on any other employee within the Department even though, to his understanding, there are others who have taken off an equivalent number of sick leave days. To the best of his understanding, however, the other employees utilized their sick leave in an appropriate manner.

11. Respondent has been employed by the Department since May, 1982 as a paramedic. He admits the incident on April 18. He went to bed at approximately

    10 pm on the evening of April 17, 1988 because he had to go to work the next morning. He was awakened around midnight by his girl friend who was hitting him, throwing things around, and screaming. She was very intoxicated. Respondent tried to avoid her and called the police who tried to quiet them both down.

    
    

12. After the police left at about 12:30 am, Respondent went to sleep on the couch. At approximately 1:30 am she started fighting with him again and to avoid any further dispute, he took some of his things, left the apartment and made the first call to Lt. Jennings. In that conversation, according to Respondent, he advised Jennings he was tired and upset and needed the day off but to his recollection, did not request any specific type of time off. At the time in issue, Respondent admits to having both sick leave and vacation time adequate for the following day accrued. According to Respondent, Jennings did not say Respondent could not have the time off nor did he say how it would be recorded. He also did not tell him to call back or to do anything else in order to secure approval for his time off. However, in light of the fact that Respondent had obviously been aware of the requirement to call in for sick leave within a certain time window, and in light of the uncontroverted evidence that he failed to do so, whether Jennings advised him to call in or not is irrelevant.

    
    

13. After talking to Lt. Jennings, Respondent intended to spend the night on his boat. However, he was too upset and was unable to sleep and he merely sat on the boat until just before dawn when he went back to his apartment. He did not sleep at all that night.

    
    

14. Jennings called at about 6:30 am. During the conversation, Jennings talked to him about whose apartment it was and Respondent, tired and upset, told Jennings that since he'd already given him the time off, he could categorize it any way he wanted. Respondent had to find a place to stay and put his things in storage and he was quite tired. He did not feel he could go to work, and since Jennings did not direct him to come to work, he did not do so that day.

    
    

15. Respondent reported to work the next shift he was scheduled for and was called in for an interview during which he was advised he was being terminated for abuse of sick leave. He attempted to tell the Chief he had not requested sick leave and explain what had happened, but Carr advised him he was nonetheless going to recommend Respondent be fired.

    
    

16. Respondent does not dispute his prior disciplinary record but denies ever having called in on sick leave when he was not really sick in order to work someplace else. The testimony of Ms. Evans outlining several days on which Respondent worked for Medic-One when he appears to have called in on sick leave shows otherwise.

    
    

17. Respondent would not object to a use of vacation time for the absence on April 18, 1988. It appears from the evidence that had Respondent not had so extensive a history of prior disciplinary actions, his absence here may well have been charged to vacation leave to protect him. Vacation time, when properly authorized, can be used for any purpose whatever. However, it must be properly approved in advance by someone higher than a Lieutenant. Chief Carr admits that had Respondent called and spoken to him that night, he might have been given vacation leave. However, in this case, no consideration was given to

    allowing Respondent to take vacation time for this absence because of his prior record.

    
    

18. In making his decision to terminate the Respondent, Chief Carr considered not only the Respondent's disciplinary record, but also his commendations. Nonetheless, the good in Respondent's file did not justify overlooking the bad and his judgement in this case is not unreasonable.

    
    

    CONCLUSION OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.65(1), Florida Statutes.

    
    

20. In the instant case, the City of Tarpon Springs seeks to discharge the Respondent from his employment with the city as a fire fighter/paramedic for cause. To lawfully do so, it must prove by clear and convincing evidence that Respondent committed the misconduct alleged and that such misconduct supports termination, Ferris v. Turlington, 510 So.2d 292, (Fla. 1987).

    
    

21. Petitioner claims that since his initial employment with the city in 1982, Respondent has been disciplined or counseled for sick leave related discrepancies six times with disciplinary action ranging from a written warning for the first offense in 1982 up to and including a three day suspension for the most recent incident which took place in 1987, prior to the current offense. This record of abuse is demonstrative of an attitude toward the city's regulations that is inconsistent with continued employment. When coupled with Respondent's other misconduct, such as sleeping on duty, being late for work, and substandard report writing, the total picture of his work record justifies, in the eyes of city authorities, termination of his employment.

    
    

22. Respondent excuses his actions here on the basis that he was tired from the stress of the prior night's happenings and his lack of sleep. Further, he denies he was told he could not take sick leave and, in fact, implies it was suggested to him by his lieutenant. His position is not well taken, however, in that the evidence shows he was completely familiar with the process for securing sick leave and that process was not followed here. By the same token, he cannot legitimately avail himself of the theory that he was granted vacation time since, in the first place, no request was made for that category of time off, and in the second place, the Lieutenant was not empowered it grant it.

    
    

23. To be sure, Respondent called in and stated he needed time off. The implication drawn from the circumstances is that he intended to be off regardless of the concurrence or lack thereof of his employers. One can sympathize with his feelings of frustration and fatigue under the circumstances. However, this does not excuse his failure to follow the established procedures to insure that his absence was legitimized. Consequently, his absence was clearly unauthorized.

    
    

24. Had this been Respondent's first incident, no doubt it would not have justified termination. However, it was neither his first incident nor his first transgression involving the sick leave process. He had been treated equitably in the past. City authorities had applied a progressive disciplinary program in a bona fide attempt to correct Respondent's continuing misconduct. When finally the straw was broken and it was also discovered he was apparently manipulating the system to moonlight in another job, Petitioner decided to sever the relationship. This was an appropriate response.

25. The City of Tarpon Springs does not have the luxury of a large, qualified work force. The Department's paramedic force is made up of only fifteen individuals and from that staff, multiple shifts must be manned. This makes for a situation in which each employee must be relied upon to be present for duty when scheduled. Absences can be accommodated, but must be planned for. The short notice, precipitous call-in for sick leave, if not bona fide, creates havoc within the system and can have serious effects on the public safety.

    
    

26. Here, Respondent's absence was not an emergency and he did not comply with the simple requirements of the system. His conduct created a hardship for his coworkers and supervisors. The decision to take separation action on this occasion is neither arbitrary nor capricious but was justified and supportable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Respondent, Jack Schenkel, be discharged from employment with the Fire Department of the City of Tarpon Springs.

RECOMMENDED this 10th day of October, 3988, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 10th day of October, 1988.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Petitioner:

1. Irrelevant.

2. Accepted.

16 - 19. Accepted and incorporated herein.

20 - 21. Accepted and incorporated herein.

22. Accepted.

23 - 36. Accepted and incorporated herein in substance but not in detail.

37. Accepted.

38 - 39. Accepted and incorporated herein in substance.

40 - 42. Accepted and incorporated herein.

For the Respondent:

1 - 2. Accepted and incorporated herein.

3 - 5. Accepted and incorporated herein.

6 - 10. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

COPIES FURNISHED:

NICHOLAS J. SARGENT, ESQUIRE SARGENT, REPKA, AND COVERT, P.A. 2963 GULF-TO-BAY BLVD., SUITE 320

CLEARWATER, FLORIDA 34619

ROBERT F. MCKEE, ESQUIRE 1724 EAST 7TH AVENUE TAMPA, FLORIDA 33605

Docket for Case No: 88-003005

Orders for Case No: 88-003005