STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CAPE CORAL, )

)

Petitioner, )

)

vs. ) Case No. 99-1088

)

SUSAN VON HALLA, )

)

Respondent. )

)

FINAL ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Cape Coral, Florida, on May 19, 1999.

APPEARANCES

For Petitioner: Marilyn W. Miller

City Attorney

Post Office Box 150027

Cape Coral, Florida 33915-0027

For Respondent: Robert B. Burandt

Roosa Sutton

1714 Cape Coral Parkway Cape Coral, Florida 33904

STATEMENT OF THE ISSUE

The issue is whether Petitioner may lawfully discipline Respondent due to excessive absences from work.

PRELIMINARY STATEMENT

By Final Notice of Disciplinary Action dated March 16, 1998, Petitioner informed Respondent that it was terminating her due to

excessive unauthorized tardiness or absence from work. Respondent demanded a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence 62 exhibits. Respondent called three witnesses and offered into evidence one exhibit.

The court reporter filed the Transcript on June 9, 1999.

FINDINGS OF FACT

1. Petitioner employed Respondent as a police officer in the Operations Division of the Cape Coral Police Department (Department) from October 5, 1987, through approximately April 27, 1998, when Petitioner terminated her employment.

2. As detailed below, Petitioner monthly provides its employees with a specified amount of leave, based on their years of service. Petitioner credits all leave in a single account. Employees then draw on their leave account by taking scheduled and unscheduled leave. This case involves Respondent's use of allegedly excessive amounts of leave.

3. In 1989, Respondent used 125.76 hours of unscheduled leave. On May 23, 1989, she received an interim performance evaluation noting that she was "below acceptable" in unscheduled leave time and needed to improve her relations with other employees. On October 13, 1989, she received an annual performance evaluation stating that she had had 18 days "sick leave" in the preceding 12 months and was below "operational standard" in attendance and relations with others; all of her

   other categories were marked as meeting operational standard.

   
   

   The attached narrative notes a "slight improvement" since her May 1989 interim performance evaluation.

4. In 1990, Respondent used 198.5 hours of unscheduled leave. Her October 12, 1990, annual performance evaluation states that Respondent was again below operational standard in attendance with 23.25 days of "sick leave." She had raised her relations with others to operational standard and work habits to above operational standard.

5. The narrative attached to the evaluation states that the evaluator has

   spent a sizable amount of time conferring with Susan regarding causes to her illnesses and resulting time off due to illness.

   Officer Von Halla does have problems with migraine's and when she experiences one, she is [less than] an effective part of the shift in fulfilling her normal duties. I have tried to understand why she experiences so many migraines and have suggested different activities (i.e. physical exercise, stress reduction). I am confident that despite the significant amount of time taken due to illness, when this officer calls in sick, she is sick and does not use this time for other unknown reasons. I feel, currently, Officer Von Halla is attempting to minimize the amount of times she calls in sick. Despite some improvement recently, Officer Von Halla still is in need of progress in this area so her time reserved starts reflecting this.

6. The narrative concludes that Respondent can improve her weak point, which is attendance, by "finding new ways to minimize the migraine potential and making a genuine effort towards this."

7. Another evaluative document speaks in a very different tone from the annual performance evaluation, which is signed by a sergeant who was Respondent's immediate supervisor. On

   October 2, 1990--only 10 days before the 1990 annual evaluation-- a captain reviewed Respondent's use of unscheduled leave and warned:

   you are hereby notified that this level of unscheduled leave time usage will no longer be tolerated. You will be required to achieve a level of usage that is consistent with the national and department average which equates to approximately sixty hours per year, or five hours per month. If you fail to maintain this rate between October 1, 1990 and December 31, 1990 I will request that the Chief of Police consider terminating your employment effective January 1, 1991.

   
   

   If you are successful, you will be expected to maintain this average with the exception of documented major medical complications that require the use of extended leave.

   
   

8. By memorandum dated December 14, 1990, from the captain to the police chief, the captain stated:

   On October 2, 1990, I advised Officer Von Halla that she would be required to maintain an acceptable level of unscheduled leave usage through December 31, 1990. The level of usage was established at five (5) hours per month, or a total of 15 hours for the period of October 2, 1990, through December 31, 1990. . . . Since October 2, 1990, Officer Von Halla has chosen to utilize forty

   (40) hours of leave. Thirty-two (32) hours were for illness as noted by her chiropractor and eight (8) for unexpected visitors.

9. The captain's memorandum reasons: "In analyzing Officer Von Halla's unscheduled leave, it is clear that her utilization

   of unscheduled leave far exceeds any norms and Officer Von Halla is clearly abusing this city benefit." The memorandum states that, after consulting with the city attorney and city manager, the captain was recommending that Petitioner initiate termination proceedings against Respondent.

10. By memorandum dated January 17, 1991, the captain asked a lieutenant to convene a Command Review Board to evaluate Respondent's excessive absenteeism and her violation of three groups of general orders prohibiting feigning of illness and failing to perform duties, abusing sick leave, and engaging in any conduct adversely affecting the morale and efficiency of the Department. The memorandum explains the last alleged violation as noting that the department had had to use 66 hours of overtime, at a cost of $1125, to cover shift shortages caused by Respondent's unscheduled absences.

11. The Command Review Board sustained the allegation that Respondent had abused her unscheduled leave, but rejected the allegations of feigning illness and failing to perform duties and engaging in any conduct adversely affecting the morale and efficiency of the department. Accordingly, the Command Review Board recommended that the police chief suspend Respondent without pay for one day.

12. By memorandum dated February 2, 1991, the police chief adopted the findings and determinations of the Command Review Board and suspended Respondent for one day. By memorandum dated

    February 14, 1991, Respondent protested the proposed discipline and demanded a hearing. The arbitrator entered a decision on June 24, 1991, that the police chief had just cause for suspending Respondent for one day without pay. Respondent served this suspension.

13. The next annual performance evaluation is dated January 25, 1992. Respondent earned marks of above operational standard in job knowledge, quality of work, initiative, work habits, and appearance. Her only mark of below operational standard was in attendance. In the preceding 15.5 months, Respondent had used 18 days of "sick leave" and had one day without pay, due to her exhaustion of leave.

14. From May 1990 through April 1991, Respondent used 148 hours of unscheduled leave.

15. The evaluations and memoranda from 1992 through 1994 are largely the same: average or above-average performance in all areas but attendance. The records note only the excessive use of unscheduled leave, but do not attribute the use to fraud.

16. From January 13, 1994 through December 26, 1997, Respondent used 691.72 hours of unscheduled leave.

17. On February 12, 1995, the former captain, now a major, recommended that the Department suspend Respondent without pay for three days due to excessive use of unscheduled leave. By memorandum dated February 27, 1995, the police chief, "with some

    reluctance," concurred with the recommendation of three days' suspension.

18. On April 18, 1995, a Departmental disciplinary review board met and failed to agree on corrective action. The board recommended only that the Department remove Respondent from field duty and place her in a noncritical position. Upon further deliberations, the board agreed upon a two-day suspension. Respondent served this suspension in June 1995, and the following month a quarterly evaluation dated July 1, 1995, notes that she was still using unscheduled leave. A memorandum dated

September 10, 1995, notes that Respondent used 213 hours of unscheduled leave in the first eight months of 1995.

1. By memorandum dated September 20, 1995, the major and three of his subordinates, including the person with immediate supervisory authority over Respondent, recommended to the police chief that the Department terminate Respondent due to excessive use of unscheduled leave. Rejecting the recommendation for termination, the police chief imposed a 30-day suspension without pay, based partly on the assurance of Respondent's physician that the cause of her constant illness had been corrected.

2. Respondent served her suspension from November 22- December 21, 1995. Quarterly evaluations in June 1996 and March 1997 note some improvement in the use of unscheduled leave.

3. From October 1996 through September 17, 1997, Respondent used 180 hours of unscheduled sick leave. From October 1, 1997,

   through January 26, 1998, Respondent used 82 hours of unscheduled leave.

4. By memorandum dated January 26, 1998, the major advised the police chief of Respondent's continued use of unscheduled leave and recommended termination.

5. By notice to Respondent from the police chief dated February 13, 1998, the chief advised Respondent that he was considering disciplinary action, including termination. The notice cites the following grounds from Article Seven, Section C, Ordinance 50-94: excessive unauthorized tardiness or absence from work, violation of Department work rules or operating procedures, actions or conduct detrimental to Petitioner's interests, or any other properly substantiated cause that adversely affects Petitioner. The notice alleges that Respondent's conduct also violates department General Order

   D-1.IV.36, which prohibits excessive use of unscheduled leave.

   
   

6. The notice summarizes Respondent's past use of unscheduled leave and the discipline that she had received. The notice asserts that she had used 96 hours of unscheduled leave in the past four months.

7. By letter dated March 12, 1998, Respondent advised the police chief that her ear, nose, and throat physician had placed her on Predisone, which had eliminated her debilitating headaches.

8. By letter dated March 16, 1998, the police chief provided Respondent final notice of proposed disciplinary action for the four grounds mentioned in the prior notice.

9. Respondent has raised an issue of disparate treatment. However, the record fails to reveal other, similarly situated employees with comparable patterns of usage of unscheduled leave.

10. The record contains a detailed record of Respondent's relevant payroll history from January 1, 1994, through May 1, 1998, on which date Petitioner terminated her. By year, these records disclose the following totals of hours for unscheduled leave and leave without pay, the latter of which is due to Respondent's exhaustion of her granted leave: 1994--190 and 48.22; 1995--201 and 148; 1996--94 and 42; 1997--174 and 58; and 1998 (four months)--32.72 and 0. The respective totals are

    691.72 and 296.22 hours. Respondent's use of unscheduled leave and leave without pay far exceed the averages for the Department.

11. Respondent is a member of a collective bargaining unit, which is represented by the Florida State Lodge of the Fraternal Order of Police (FOP).

12. Petitioner and FOP negotiated a collective bargaining agreement in effect from October 1, 1997, through September 30, 2000 (Agreement).

13. Article 3, Section 1, of the Agreement provides:

Except as specifically abridged or modified by a provision of this Agreement, City will continue to have, whether exercised or not, all of the rights, powers and authority

heretofore existing, including, but not limited to, the following: . . . to hire, transfer, promote and demote employees; to direct employees, to take disciplinary action up to, and including, termination; to relieve employees from duty because of lack of work or for other legitimate reasons; [and] to issue rules and regulations . . ..

1. Article 10, Section 2, of the Agreement describes the forms of discipline as follows:

   In accordance with Police Department General Order D-1 (as dated April 1, 1993), forms of corrective action will be utilized by City with the approval of the Police Chief shall include: Counseling or Re-Training--to correct and improve employee performance; Reprimand--a written statement warning the employee of the consequence of future misconduct of a similar nature; Suspension-- suspension from duty without pay; Demotion--a change to a position of lesser responsibility and salary; and Termination--dismissal from the Police Department.

2. Article 10, Section 3, of the Agreement provides that Petitioner shall use "[p]rogressive corrective action," unless the severity of the offense dictates a more severe action.

3. Article 11 of the Agreement provides that Petitioner may take disciplinary action against an employee for "just cause."

4. Article 15, Section 1(a), of the Agreement grants employees with five or less years of continuous service 25 days of annual leave per year. Article 15, Section 1(b), grants employees with 6-10 years of continuous service 30 days of annual leave per year. The remaining subsections grant more leave based on years of service.

5. Article 15, Section 1(g), of the Agreement provides:

   
   

   The use of annual leave for other than illness must be scheduled with the employee's supervisor. In case of illness, an employee must notify his/her supervisor not later than two (2) hours before the beginning of the scheduled work day or in accordance with Police Department Rules and Regulations.

   
   

6. The Agreement provides that Petitioner may discipline covered employees for "just cause," but does not identify what constitutes "just cause."

7. Ordinance 50-94 (Ordinance) sets forth the rules and regulations governing all of Petitioner's employees. Article One, Section B.2, states that the Ordinance covers employees who are parties to a collective bargaining agreement, "except that in the event of a conflict between the terms of this Ordinance and the collective bargaining agreement, the collective bargaining agreement shall govern."

8. Article Six, Section E, provides that an employee may be dismissed for "just cause," but that the department head must comply with the procedures in Article Seven prior to termination.

9. Article Seven, Section B, requires progressive discipline for "the same or similar conduct by the employee," although Petitioner reserves the right to impose the most severe discipline as an initial measure "when circumstances warrant."

10. Article Seven, Section C, cites several grounds for discipline, including "[g]ross neglect of duty or specific serious failure to perform assigned duties"; "[m]ental or

    physical impairment, normally as supported by written documentation from not less than two licensed physicians, that prevents the employee, even with reasonable accommodation, from performing the essential functions of his or her position"; "[a]bsence without leave, or failure to give proper notice of absence"; "[e]xcessive unauthorized tardiness or absence from work"; "[v]iolation of Department work rules or operating procedures"; "[a]ctions or conduct detrimental to the interests of the City"; or "[a]ny other properly substantiated cause which adversely affects the City."

11. Article Seven, Section D, requires that the employee proceed with a grievance for proposed discipline under the ordinance or collective bargaining agreement. Section E.5 describes the hearing conducted under the ordinance, which is the procedure that Respondent elected, and states, at Subsubsection 7, that the Administrative Law Judge is to determine if Petitioner proves by a preponderance of the evidence "just cause" for the discipline. Subsubsection 8 provides that the order is a final order. Subsubsection 9 provides for judicial review.

12. Article Eleven describes attendance and leave. Section

    
    

    A.6.a provides that fulltime employees shall be present at their assigned jobs, "unless absence from duty is authorized by the Department Head as provided herein." Section A.6.c states in part:

    Excessive unscheduled absences or tardiness shall be grounds for disciplinary action.

    For purposes of this paragraph, "excessive unscheduled absences or tardiness" shall mean use which is in excess of the average number of hours and/or occurrences of unscheduled leave taken by other City employees in the same or similar positions . . ..

    
    

13. Article Seven, Section E.3, defines unscheduled leave as that which the employee requests and the supervisor approves on the day that it is taken. This section states: "An employee's excessive use of unscheduled leave may be grounds for disciplinary action." Section E.1 contains a schedule for the accrual of leave, and the applicable monthly accrual rate, which increases with seniority, applies to the total of each employee's scheduled and unscheduled leave.

14. Department General Order D-1 (General Order), as last revised on December 11, 1995, provides, at Section II, that it applies to [ALL] members of the Department. This section states that the police chief will use progressive discipline, "unless the severity of the offense dictates a more severe action."

15. Section IV prohibits various acts, including feigning illness, avoiding responsibility, or failing to perform one's duties; "excessive use of unscheduled leave"; or engaging in conduct that adversely affects the morale and efficiency of the department.

16. By memorandum dated July 20, 1987, a major in the Department advised all operations division personnel that absences, "regardless of cause," weaken the Department's ability to serve the public though personnel shortages, increase

    personnel costs due to overtime to cover absences, and increase burdens on other employees.

17. The safety of the public and law enforcement officers requires a minimum staffing of law enforcement officers on each shift. The absence of a scheduled officer requires that the Department pay overtime for an unscheduled officer to report for duty.

18. The record does not demonstrate that unscheduled absences of an officer, up to the total amount of granted leave, compromise the safety of the public or other officers. The contrary inference is precluded in part by the fact that, in the Agreement, Petitioner grants each officer a certain amount of leave and does not further restrict the officer's choice to use his or her granted leave as unscheduled leave. However, the use of unscheduled leave in excess of the granted leave is not anticipated by the Agreement and may compromise the safety of the public and other officers.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter. Ordinance 90-54, Article Seven, Section E.5.

20. The Agreement and Ordinance grant each employee a specified number of hours of leave, but do not break this leave between scheduled and unscheduled leave. Failing to differentiate between scheduled and unscheduled leave, these

    lump-sum grants of leave effectively permit each employee to structure his or her leave as best suits the employee's circumstances. For instance, an employee who realizes that recurrent illness or family needs will necessitate recurrent unscheduled leave may not schedule any leave and attempt to cover his or her absences with unscheduled leave.

21. The Ordinance attempts to restrict an employee's use of unscheduled leave. Ordinance 90-54, Article Eleven, Section A.6.a, states that excessive use of unscheduled leave may be grounds for discipline. General Order Section IV also prohibits excessive use of unscheduled leave.

22. The Agreement contains no such restriction on the use of unscheduled leave. The Ordinance itself provides that the Agreement prevails in the case of a conflict. As for the General Order, it would be illogical to give greater effect to a Departmental directive than to a city ordinance; thus, the General Order cannot override the Agreement, in the case of a conflict. The question therefore arises whether the restrictions on the use of unscheduled leave in the Ordinance and General Order conflict with the lump-sum grant of leave in the Agreement.

23. This case clearly reveals the conflict between the prohibitions in the Ordinance and General Order against the excessive use of unscheduled leave and the provision in the Agreement granting lump-sum leave. Lump-sum leave is a bargained-for benefit. The Ordinance and General Order

    unlawfully eliminate this benefit by authorizing a supervisor to enforce his or her opinion of what level of use of unscheduled leave is excessive. In this case, Respondent's captain determined that she was using too much unscheduled leave because she had exceeded the Department average.

24. By choosing to quantify a limit on unscheduled leave, the captain unilaterally deviated from the Agreement's lump-sum grant of leave and imposed his own idea of what Petitioner should have obtained in bargaining with the union. By choosing the average amount of unscheduled leave as the line of demarcation between excessive and nonexcessive use of unscheduled leave, the captain, now placing at risk of discipline a sizable percentage of employees, dramatized the conflict between the lump-sum approach to leave, as adopted in the Agreement, and the unspecified restrictions imposed on the use of unscheduled leave, as adopted by the Ordinance and General Order.

25. Identifying a conflict between the Agreement, on the one hand, and the Ordinance and General Order, on the other hand, does not undermine the effect of the Ordinance and General Order, in their entirety. Doubtlessly, the Ordinance's restriction against the excessive use of unscheduled leave may continue to apply to employees not covered by the Agreement. Nonconflicting provisions of the General Order continue to apply to unionized officers, as the Agreement acknowledges by its incorporation of the range of discipline found in the General Order.

26. It is even possible to harmonize the Ordinance and General Order, on the one hand, with the Agreement, on the other hand, by construing prohibitions in the Ordinance and General Order against the use of excessive leave to mean, at least as to employees covered by the Agreement, leave in excess of the amount granted under the Agreement. Although "just cause" cannot encompass the use of granted leave, even it is determined by a supervisor to be an excessive use of unscheduled leave, "just cause" may encompass the use of more leave than is granted by the Agreement.

27. Just as employees covered by the Agreement may develop reasonable expectations, based on the Agreement, as to their rights concerning leave, so may Petitioner. In the case of leave, Petitioner may reasonably rely on the availability of its fulltime employees on a fulltime basis, less lump-sum leave. If an employee unjustifiably frustrates these reasonable expectations, the employee may find himself or herself subject to discipline, including termination.

28. However, the record suggests that Respondent's use of more leave than granted was necessitated by her medical problems and thus justifiable. Perhaps in part because they were largely unconcerned with the cause of the unscheduled leave, Petitioner's witnesses do not seem to have questioned Respondent's representations that her absences were due to illness, including an ongoing migraine condition. Petitioner has not made

    Respondent's medical condition an issue in the present case. Thus, assuming that all of Respondent's leave during the four years in which she had leave without pay was for medical reasons, this case does not address the important issue of whether Respondent suffers from a physical impairment that precludes her continued service with the Department, even after the Department has provided reasonable accommodations.

29. This issue may yet be litigated, if Respondent continues to use more leave than granted. In such a case, the parties may focus on specific medical conditions corresponding to specific dates of leave, Respondent's diagnoses and prognoses, Respondent's use (if any) of scheduled or unscheduled leave for purposes unrelated to her medical condition, and the Department's ability to offer accommodations.

30. Respondent seeks attorneys' fees and back pay. Respondent does not cite to the authority for such awards. To the contrary, the Agreement omits mention of these awards (as well as the alternative of referring the case to the Division of Administrative Hearings) and authorizes an arbitrator to determine only if there has been a violation of the Agreement. The ordinance (which authorizes the referral to the Division of Administrative Hearings) allows the grievance committee to order "relief" or the Administrative Law Judge to render a decision "concerning the disciplinary action." These are insufficient bases on which to award back pay and attorneys' fees.

ORDER

It is

ORDERED that Petitioner's request to terminate Respondent's employment or impose other discipline is denied.

DONE AND ORDERED this 27th day of July, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1999.

COPIES FURNISHED:

Marilyn W. Miller City Attorney

Post Office Box 150027

Cape Coral, Florida 33915-0027

Robert B. Burandt Roosa Sutton

1714 Cape Coral Parkway Cape Coral, Florida 33904

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Pursuant to Cape Coral Ordinance 50-94, Article Eight, Section E.9, any party who is adversely affected by this final order may apply to the local circuit court for judicial relief within thirty (30) days after rendition of the final order. The party shall commence the circuit-court proceeding by filing a petition for writ of certiorari.

Docket for Case No: 99-001088

Orders for Case No: 99-001088