STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GWENDOLYN MORSS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1758

)

HEALTH AND REHABILITATIVE )

SERVICES, AND RETARDATION )

PROGRAM OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held on March 1, 1977, in the Lucerne General Hospital Conference Room, 818 South Main Lane Street, Orlando, Florida, at 8:30 A.M. before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter came to be heard upon the timely appeal by Gwendolyn Morss of her suspension by letter dated June 4, 1976 for taking excessive sick leave to the Career Service Commission, which referred this matter to the Division of Administrative Hearings to conduct the final hearing.

ISSUE

Whether the suspension of the Appellant for the reasons stated in the letter of disciplinary action was for good cause.

APPEARANCES

For Petitioner: Ms. Gwendolyn Morss, pro se

1185 Lincoln Terrace

Orlando, Florida 32787

For Respondent: Douglas E. Whitney, Esquire

District General Counsel

Health and Rehabilitative Services 1350 Orange Avenue

Winter Park, Florida 32789 FINDINGS OF FACT

1. Gwendolyn Morss, at the time of her suspension, was a Career Service Commission employee with permanent status.

   
   

2. The facts are less than clear how much sick leave Morss had to her credit in January, 1975. According to the testimony of a personnel expert, a Career Service Commission employee with less than 5 years service accrues 4.4 hours of sick and annual leave every two weeks, or 13 days of each annually. In January, 1975, Morss would have had accrued 4 days of leave (either sick or annual) from 1974. In the year 1975, Morss took maternity leave beginning on

   October 2, 1975. She accrued 79.2 hours of sick leave and 79.2 hours of annual leave, or approximately 20 total days in 1975 and used over 17 days. Therefore, she began 1976 with approximately 6 days of accrued leave. She earned 15.4 days of total leave in 1976 from February until the end of August. She took 16 days of sick leave. She therefore had approximately 6 days of leave beginning September 1, 1976, yet in September she took 15 or 17 days leave, or apparently

   9 to 11 days more leave than she could have accrued. However, she received pay for this period according to her testimony.

   
   

3. The records indicate that all her leave was approved except the day of sick leave on May 12, 1975, and she had sufficient leave, either sick or annual, to cover her absences until September, 1976.

   
   

4. Morss and her mother testified that when she was absent from work on sick leave, she was in fact sick, and submitted doctor's excuses on the one occasion when she was absent for over three consecutive days. The record indicates that an excuse was presented. See February, 1976, EXHIBIT 2.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 112.20, F.S., authorizes sick leave for state employees, accumulation of sick leave and payment for accumulated sick leave. Rule 22A- 8.11, F.A.C., provides for the manner of computing earning of sick leave, the accrual of sick leave, and basis for using sick leave. In short, one earns sick leave at a rate of 13 days per year, may accrue sick leave without any limit, and use sick leave for any of the three following reasons:

   
   

   1. If personally ill, injured, or exposed to a contagious disease which would be dangerous to others, and

   2. For personal appointments with physician or dentist when it is not possible to arrange appointments for non-duty hours, and

   3. Up to six days per calendar year because

      of illness or injury of an immediate family member.

      
      

6. Rule 22A-8.11B1 also provides that only earned sick leave can be used. Therefore, no employee can use "excessive sick leave," because an employee can only use as much as she or he has accrued. It is clear that sick leave has been provided for state employees as a part of their compensation to permit them to continue earning a salary while sick or injured, having a doctor's appointment or while necessarily caring for a member of their immediate family. In granting this benefit, the statute and the rules indicate the intent for people to take sick leave when it is appropriate.

   
   

7. Rule 22A-8.11B4(b)(c) and (d) provide management with the means to require an employee to justify sick leave taken. Refusal of the employee to provide the information requested can be a basis for denying the employee to use accrued sick leave. Neither evidence of any effort by management to require the Appellant to justify her sick leave nor evidence of her refusal to provide such substantiation was introduced by the agency.

   
   

8. It is clear that sick leave is provided state employees as a part of their compensation benefits to provide them continuing income when they or a member of their family is ill, injured, or has a doctor's appointment. It is further clear that an employee cannot take sick leave that she or he has not earned and accrued. An employee, by being continually absent, may cause

problems for management, an if so, management can require the employee to justify the absence and if the employee does not, management can deny further sick leave. Technically, considering the rules, an employee cannot be charged with taking excessive sick leave because the employee cannot take more sick leave than he or she has accrued, and if the employee has accrued sick leave and meets the criteria to take sick leave, the employee is entitled to take all he or she has accrued. The charge therefore is euphemism for abuse or misuse of sick leave. To show this offense the agency must show that the employee took sick leave when the employee was not entitled to take sick leave. The agency has failed to show one incident where the Appellant took sick leave but was not entitled to sick leave. The agency has shown only that the Appellant took a lot of sick leave, and while with other evidence this could show circumstantially that the Appellant abused her sick leave privilege, it does not prove the allegations against the Appellant, and certainly not when denied by the Appellant and her mother.

RECOMMENDATION

Based on the foregoing the Hearing Officer finds that the agency did not have cause to suspend the Appellant; however, the evidence tends to indicate that the Appellant took more leave totally than she could have accrued in 1975 and 1976. Therefore, prior to any action to reimburse her for the days she was suspended, the Hearing Officer would recommend an audit of her leave records and that she be compensated only if the audit reveals that she took no more leave than she had accrued.

DONE and ORDERED this 9th day of March, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1977.

COPIES FURNISHED:

Douglas E. Whitney, Esquire District General Counsel

Health and Rehabilitative Services 1350 Orange Avenue

Winter Park, Florida 32789

Mrs. Dorothy B. Roberts Appeals Coordinator Department of Administration Division of Personnel

530 Carlton Building Tallahassee, Florida 32304

Ms. Gwendolyn Morss 1185 Lincoln Terrace

Orlando, Florida 32787

Docket for Case No: 76-001758

Orders for Case No: 76-001758