STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM THOMAS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3538

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

In accordance with duly served notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer on November 9, 1988, in Jacksonville, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Linoria Anthony, Esquire

345 South Magnolia Drive Suite F - 21

Tallahassee, Florida 32301

For Respondent: Scott D. Leemis, Esquire

Post Office Box 2417 Jacksonville, Florida 32231-0083

This cause arose upon notification by the Department of Health and Rehabilitative Services (HRS), Respondent, to Mr. William Thomas, Petitioner, that he had been deemed to have abandoned his career service position of employment because of alleged absence from work for three consecutive days.

That letter was dated June 23, 1988. The Petitioner contested that initial decision by his letter of July 11, 1988 to the Department, seeking a review of his case and a formal proceeding to dispute the Department's assertion. The cause was referred to the undersigned Hearing Officer for a hearing pursuant to Section 120.57(1), Florida Statutes.

The cause came on for hearing as noticed, at which the Respondent proceeded by presenting testimony of Andrea Cash, one of the Petitioner's employment superiors; Saul Freiden, also a co-worker; Terry Owens, an Employee Relations Specialist in the HRS district office, as well as Respondent's Exhibits 1-5.

Respondent's Exhibit 3 was not admitted because it was not moved into evidence, but merely identified. The Petitioner presented the testimony of Wilson Reynolds Jr., the Petitioner's immediate employment supervisor at times pertinent to this case, and Decima Thomas, the Petitioner's wife, as well as presenting four exhibits, all of which were admitted into evidence.

The parties stipulated to an extended briefing schedule for filing proposed recommended orders, waiving the requirement of Rule 28-5.402, Florida Administrative Code. The proposed recommended orders were ultimately timely filed pursuant to the extension and have been treated in this Recommended Order, as well as in the Appendix attached hereto and incorporated by reference herein. The issue to be resolved in this proceeding concerns whether William Thomas indeed abandoned his position and, embodied within that issue, whether he was absent from work without authorization for three consecutive days and whether "three consecutive days" means three calendar work days or three or more shifts of eight hours each, missed from work without authorization.

FINDINGS OF FACT

1. The Petitioner, William Thomas, was employed at times pertinent hereto as a permanent employee at the Duval Regional Juvenile Detention Center (Detention Center) operated by the Department of Health and Rehabilitative Services. His title was Detention Case Worker I. During the two week period beginning June 13, 1988, the time period relevant to this proceeding, he was working a so called "asymmetric workweek." This is a modified work schedule such that the Petitioner was working two work days on the weekends consisting of two sixteen hour shifts, one for each day, for a total of thirty-two hours of work scheduled to be performed by the Petitioner on June 18 and 19, 1988. Prior to the problem which arose in this situation, the Petitioner was also scheduled to work on Tuesday, June 21, but not on Monday, June 20.

   
   

2. The Petitioner's immediate work supervisor was Wilson Reynolds, Jr., who testified on Petitioner's behalf. In addition to the Petitioner, Mr. Reynolds supervised twelve other employees who were working the asymmetric work week. This work week had been approved by the Department of Administration approximately two years previously, in 1986, at least as to this juvenile detention center.

   
   

3. Pursuant to HRS rules, Mr. Wilson had authority to grant emergency leave when employees requested as, for instance, when an employee phoned in such a request when he was unable to come to work due to some emergency having arisen. Mr. Wilson also had authority to schedule employees to work shifts outside of their routine work schedule if the need arose. Mr. Wilson's employees, for instance, had been scheduled to work some extra duty in order to perform the duties of other employees who had to be absent from their normal work stations to attend training sessions. According to agency policy, in Mr. Reynolds' absence, the supervisor immediately on duty could grant tentative approval of emergency leave requests. In the event the supervisor on duty was unable to approve or deny the leave request, Mr. Reynolds had authority to approve leave requests "after the fact."

   
   

4. It developed that some time during the week of June 13, the Petitioner became incarcerated. The Petitioner was unable to obtain access to a telephone for several days, and so, at his behest, his wife called the "Master Control" office at the detention center on June 16, 1988, to advise the Petitioner's employer that he would not be able to report to work, as scheduled, due to emergency reasons. On June 18, 1988, she again called that same "Master Control" office to advise that the Petitioner would be away from work until June 30, 1988, due to an emergency beyond his control. The Petitioner, after his last duty shift which he had performed, was not scheduled to work until June 18, 1988. He was then scheduled to work two eight hour shifts on June 18 and two eight hour shifts on June 19, which was a Sunday. On Monday, he was not scheduled to work. Then on June 21, Tuesday, he was scheduled to work an eight

   hour shift. Mrs. Thomas' reason for calling the employer's office was to put the employer on notice of his unavoidable absence from work. She was not aware of the rule requiring her to speak with the immediate supervisor. The immediate supervisor was not on duty on the day that she called in any event. She did speak with a staff member, a Mrs. Wavel Johnson, with whom she was acquainted, who advised her to have the Petitioner himself call in and request approval for the absences. Mrs. Thomas then revealed that her husband was incarcerated and would be incarcerated until June 30, 1988, which was why he was unable to call. This information was then conveyed to Mr. Reynolds, the Petitioner's immediate supervisor on June 19, 1988 at the beginning of the shift.

   
   

5. On that day, during the morning, the Petitioner called and spoke with Mr. Reynolds, his supervisor. The Petitioner advised him of his incarceration and his anticipated release date of June 30, 1988, requesting that he use his accrued annual leave to cover this absence. Mr. Reynolds orally agreed to the request and approved it, pending the Petitioner's return to work and submittal of proof of the reason for the stated emergency basis for absence. Mr. Reynolds considered Mr. Thomas' incarceration as a sufficient justification for granting emergency leave. In the log book, Mr. Reynolds had a staff member, Mrs. Johnson, make a note that Mr. Thomas had called in requesting leave and that he "had no problem" granting emergency leave. He testified that he intended that notation to mean that he had approved the leave request. During Mr. Reynold's conversation with the Petitioner, he advised Petitioner that he would schedule him off duty for Tuesday, June 21, 1988, because he already had sufficient staff who would be present for duty to cover his assignment and would not need the Petitioner. Thus, for the eight hour shift he was originally scheduled to work on June 21, 1988, the Petitioner was not absent without approval either. The roster was changed so that he was not even scheduled to work that day.

   
   

6. Andrea Cash is the superintendent of the Duval Regional Detention Center. On or about June 20, 1988, she read Mrs. Johnson's entry in the log book and concluded that Mr. Reynolds had not granted the necessary leave approval to cover the Petitioner's absence. Ms. Cash interpreted that entry to be that the leave approval was merely pending and that Mr. Reynolds had "no problem" with granting it. Ms. Cash, however, did not confer with Mr. Reynolds or Mrs. Johnson about what the entry meant nor seek any clarification as to the meaning of the entry or Mr. Reynolds' intentions with regard to the leave approval. Ms. Cash concluded that the leave had neither been approved nor denied, but did not communicate that position to the Petitioner. Instead, on June 23, 1988, she wrote the Petitioner advising him of his alleged job abandonment due to his absences of June 18th and 19th. She never discussed her plans to terminate the Petitioner, for alleged abandonment, with Mr. Reynolds.

   
   

7. The approval granted during June or July 1986 to the Detention Center to implement an asymmetric work week was in accordance with Rule 22A-8.003(1), Florida Administrative Code. That rule provides that eight hours of work shall constitute a work day for all full-time employees, unless a different work day is specifically approved by the Secretary of Administration. The asymmetric work day had been so approved and implemented at times pertinent hereto. The Petitioner normally worked two 16 hour work days from 7 a.m. to 11 p.m. on Saturday and on Sunday plus one other eight hour work day. Thus, three calendar work days constituted Petitioner's normal work week of 40 hours.

   
   

8. The Detention Center has a "Facility Operating Procedure on Leave and Attendance" which provides that an employee must contact the supervisor on duty in advance of the beginning of his shift and advise that supervisor of the nature of any emergency concerning which he asks for leave. The duty supervisor

   then has authority to tentatively approve or deny the request. The employee must personally speak with the supervisor who is on duty. Thereafter, on the first day the employee reports back to work an "HRS Form 84" must be completed and the immediate supervisor must provide final approval if the annual leave is to be approved due to the stated emergency. The procedure does not provide that the employee's supervisor is to discuss the request with higher levels of supervision prior to granting approval for use of annual leave to cover such an absence. This procedure and policy does not require that higher level supervisors review the request and give final approval or denial. In other words, the employee in this situation is using his own annual leave to make up for his absence for emergency reasons and the facility's policy gives the immediate supervisor himself or herself the authority to approve it or deny it without recourse to higher supervisory authority.

   
   

9. The Petitioner's wife contacted the person or office she believed was appropriate to report the Petitioner's impending absence and to explain that it was for emergency reasons, not knowing that she should speak to his immediate supervisor. In any event, before the Petitioner had missed three consecutive days of work he himself contacted his immediate supervisor, Mr. Reynolds, during the morning of June 19, 1988, and obtained Mr. Reynolds' verbal approval for absence due to emergency reasons, to be "covered" by Petitioner's annual leave. Mr. Reynolds did not tell the Petitioner that his request did not comply with the Facility Operating Procedure on Leave and Attendance. Mr. Reynolds, rather, accepted the Petitioner's justification for the emergency leave and approved it.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1) Florida Statutes (1987).

    
    

11. Section 22A-7.10(2)(a), Florida Administrative Code provides:

    
    

    (2) Abandonment of position-

    A. An employee who is absent without authorized leave of absence for three consecutive work days shall be deemed to have abandoned the position and to have resigned from the Career Service. . . . However, such an employee shall have the right to petition the Department for a review of the facts in the case and a ruling as to whether they circumstances constitute abandonment of position. (Emphasis Supplied)

    
    

12. This rule thus creates a presumption that an employee who is absence from work for the prescribed period of time, three consecutive work days, without authorized leave, has abandoned his or her position. The agency must then demonstrate that an employee's absence occurred for three consecutive days without leave from his employment superiors. This is a rebuttable presumption. An employee who has been deemed to have abandoned his position is entitled to a review concerning whether the circumstances constitute abandonment of position. Rule 22A- 7.010(2)(a), Florida Administrative Code. Thus the rule takes into account that certain factual circumstances can be considered as having material bearing on the question of whether or not an employee has abandoned his position and he is entitled to demonstrate such circumstances as will show that he did not abandon his position.

13. The facts in this case show that the Petitioner was unable to telephone to report to his supervisor his impending absence because of his incarceration. Consequently, his wife, on his behalf, contacted the Department on June 16, and again on June 18, 1988, to advise that the Petitioner would not be at work as scheduled. She did not actually request an emergency leave, but merely informed the employer that the Petitioner would not be able to come to work due to an emergency. The point here is that Petitioner, although he could not call himself, enlisted his wife's efforts to notify his employer of his absence and the basis for it. Thus, by responsibly notifying his employer, it must be concluded, he has complied with the spirit of the Facility Operating Procedure on Leave and Attendance, the written compilation of agency policy of relevance herein. On June 19, 1988, moreover, the Petitioner himself phoned in and requested emergency leave from his supervisor Mr. Reynolds, to cover the period he was incarcerated. Mr. Reynolds approved that emergency leave to include both June 18 and June 19 and every other work day for which the Petitioner was scheduled to work through June 30, based upon the Petitioner's stated emergency. Mr. Reynolds also removed the Petitioner from the work schedule for June 21, the third work day of the altered work week under which he served. Thus there is no issue as to his absence on June 21, because he was not scheduled to work due to Mr. Reynolds modification of the schedule after his phone conversation with him.

    
    

14. In any event, Ms. Cash, the "Superintendent II," concluded that Mr. Reynolds had indeed not granted the request for leave, without discussing the matter with Mr. Reynolds, who had authority to approve the emergency leave request. Ms. Cash simply unilaterally determined that the Petitioner failed to comply with the above-named policy manual or procedure. She did not advise the Petitioner of her decision until after the fact. The first advice he got of the problem with his leave request was the "abandonment letter" from her dated June 23, 1988. That letter advised him that he had not complied with the procedures and his leave had not been approved. It is indicated in that letter that the reason for his alleged abandonment was his absence from work on June 18 and June

19. The Department apparently takes the position that the two 16 hour shifts which the Petitioner was due to work on June 18 and June 19 in reality constitute four eight hour "work days" and thus, in missing those two days of work, he missed the more than three consecutive "work days" required for abandonment to lie.

15. In spite of that argument, however, the fact remains that the Petitioner ultimately called his supervisor Mr. Reynolds on the morning of June

1. Although he did not personally call before his first absence from a scheduled work day or shift, he did call in and request approval of emergency leave before he had missed three consecutive work days. Thus, by Mr. Reynolds' verbal approval of that absence and emergency leave request, it cannot be concluded that the Respondent missed three consecutive work days without authorization, even if the Department's position were correct that the two 16 hour shifts scheduled for June 18 and June 19 constitute, in effect, four work days.

   
   

   1. The agency here also contends that the Petitioner's abandonment is based on his failure to comply with the above referenced operating procedures for leave and attendance since he did not personally call in, prior to the time he was to report to work, to request the emergency annual leave. Under the procedure manual referenced, however, Mr. Reynolds clearly had approval authority for emergency-related annual leave without recourse to his superiors. Once he granted that leave, as he did, then the employee cannot be deemed to

      have abandoned his position because he did get authorization for leave of absence before three consecutive work days elapsed. Indeed, once Mr. Reynolds granted the leave request, the Department may be deemed to have waived its right to demand strict compliance with the Facility Operating Procedures on Leave and Attendance Manual. Because of Mr. Reynolds' representation that the leave was authorized, the Petitioner remained absent from work in reliance on that approval, without taking other steps to insure the approval of his absence.

      See, by analogy, Ida Salz v. Division of Retirement, 432 So.2d 137 (Fla. 3d DCA 1983).

      
      

   2. Even had the Department demonstrated that the leave was not actually authorized, the fact remains that the Petitioner's absence does not constitute an absence for three consecutive "work days." The Department contends that any three consecutive unauthorized absences which occur prior to the date of the notice of abandonment can be used to meet the prescribed absence period requirement. While it is true that the Detention facility and the Petitioner were working on a asymmetric work week, the fact remains that June 18 and June

      19 only constituted two work days. The Department also seeks to show that June 21, Tuesday, as well, could be considered the third consecutive day of missed work. The facts demonstrate, however, that on June 19, 1988, after conversing with the Petitioner about the matter, Mr. Reynolds then scheduled the Petitioner to be off duty for that day because he was not needed. Mr. Reynolds had authority to alter the work schedules in that fashion and he not only struck through the Petitioner's name on that occasion, but also removed two other individuals from the work schedule. Thus the Petitioner's next work day became June 25, 1988, a date beyond the scope of the June 23, 1988, abandonment notification letter. In fact, that letter did not give notice that June 21 constituted a day on which he was guilty of a third consecutive absence, rather, its only reference is the days of June 18 and 19.

      
      

   3. June 18 and 19 cannot constitute three consecutive work days of absence. Rather, they have been interpreted to mean two work days of sixteen hour shifts each. In Petitioner's Exhibit 2, the document by which the Department requested approval of the Department of Administration for the "asymmetrical work week," numerous incidents were cited whereby staffing patterns could be better implemented, both for the satisfaction of employees and for the efficient delivery of the required work at the institution. In the course of the Department's explanation of the reasons for the asymmetric work week, whereby in some instances longer shifts would be worked per day, with fewer calendar days worked per week, for certain employees, the Department explained that "weekend employees working the two 16 hour days and one 8 hour day would have four days off during the week when child care would not be necessary." This is a revealing example of the fact that the agency has a policy of interpreting "work day" to be co-extensive with the calendar day and that weekend days constitute two work days, but just differ from the normal work day by having 16 hour shifts per day instead of 8 hour shifts. The "trade-off" is, of course, that the employee only has to work those two 16 hour days plus one 8 hour day to make an entire 40 hour weekly work period, thus being off for the remaining four days of the calendar week.

      
      

   4. Mr. Reynolds' testimony also reveals the fact although that, although the Detention Center was operating on an asymmetric workweek whereby employees work less than a full calendar week, that did not mean that the days in question were not each individually considered, as to each date, to be calendar work days, and that 8 hours of work was not considered to be a work day on the asymmetric workweek. Thus, on the dates mentioned in the "notification of abandonment letter" of June 23, 1988, the Petitioner only missed two modified

      work days, modified as approved by the Department of Administration pursuant to the request contained in Petitioner's Exhibit 2. The only possible third consecutive work day missed then fell outside of the period of abandonment for which the Petitioner received notice by the letter of June 23, 1988, Tuesday, June 21st. Even though the Petitioner was not actually notified that the Respondent considered June 21st as the third consecutive day, (although it seemed to take that position at hearing), the fact remains that, after his discussion with his supervisor on June 19, he was not obligated to work that day because he had been removed from the schedule by a supervisor with authority to so alter the schedule.

      
      

   5. In summary, the evidence of record, supportive of the above findings of fact, reveals that, at most, the Petitioner missed two work days and not three consecutive work days and thus has not met the standard for abandonment of his position set forth in the above-quoted rule. Further, it has been demonstrated that during the course of that absence he received approval for it from his supervisor who was authorized by the Department's policies and rules to approve such an emergency leave request. Thus it cannot be concluded that the absence for June 18 and 19 was an unauthorized absence in any event.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore

RECOMMENDED that a Final Order be entered determining that the circumstances presented in this case, found and discussed above, did not constitute abandonment of position, as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code, and directing that the Petitioner be reinstated to his former position with backpay and reimbursement of related benefits.

DONE and ORDERED this 20th day of March, 1989, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989.

APPENDIX

Petitioner's Proposed Findings of Fact

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

7. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

8. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

9. Accepted.

Respondent's Proposed Findings of Fact

1. Accepted.

2. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent immaterial.

3. Accepted, but not in itself dispositive of material issues presented.

4. Accepted, but not in itself dispositive of material issues presented.

5. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

6. Rejected as contrary to the preponderant weight of the evidence.

COPIES FURNISHED:

Linoria Anthony, Esquire

345 South Magnolia Drive & Suite F - 21

Tallahassee, FL 32301

Scott D. Leemis, Esquire

P. O. Box 2417 Jacksonville, FL 32231-0083

Gregory L. Coler, Secretary Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 88-003538

Orders for Case No: 88-003538