STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HRS, RETARDATION ) PROGRAM OFFICE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-681

)

PATRICIA VENTURI-CLYDE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 10:00 a.m., on November 9, 1977, in Room 103, Collins Building, Tallahassee, Florida.

APPEARANCES

For Petitioner: George L. Waas, Staff Attorney

Department of Health and Rehabilitative Services

1323 Winewood Boulevard, Suite 406

Tallahassee, Florida 32301

For Respondent: William J. Nanikas

1215 Thomasville Road

Tallahassee, Florida 32303 FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times pertinent to this proceeding, respondent Patricia Venturi Clyde was a permanent member of the career service and was employed by petitioner as a resident life assistant at the Sunland Training Center in Tallahassee, Florida. Sunland is a residential facility for the profound and severely retarded.

   
   

2. On numerous occasions during her employment at Sunland, respondent has been orally counseled by her supervisor regarding excessive absences and tardiness. In April of 1975, and again in January of 1976, respondent received written reprimands from her supervisor for an unauthorized absence and habitual tardiness. On both occasions, she was warned that the next such offense would warrant suspension.

   
   

3. From May of 1975 through October of 1976, an eighteen month period, respondent submitted and received approval for annual, holiday or sick leave of approximately 75 separate days or parts thereof. Some fourteen of these

   involved leave without pay because respondent had no leave time accumulated at the time of the absence. During that same period of time, respondent also submitted some 55 requests for leave without pay which were not approved.

   Almost all of the latter were for short periods of time for tardiness due to oversleeping, car trouble or her ride not coming on time.

   
   

4. In September of 1976, respondent submitted a leave request to take two days of annual leave on November 13 and 14, 1976, in order to attend a Jehovah's Witness religious assembly. On or about November 11, 1976, respondent and her supervisor, Ms. Marion Ewell, had a formal conference regarding respondent's excessive absenteeism. Respondent was told by Ms. Ewell at that time that the unit would be below minimum coverage on November 13th and 14th and that her request for annual leave would only be approved if someone could be found to exchange days and replace respondent on those days. Both Ms. Ewell and respondent contacted those employees who had days off, but both were unable to find an employee willing to exchange days with respondent. Respondent was informed by Ms. Ewell that she would be suspended if she took unauthorized leave on November 13th and 14th, 1976.

   
   

5. Respondent then went to Sunland's personnel director, Jay Kassees, for advise. Since respondent had not followed the proper procedural channels of authority, Kassees told her he could do nothing to help her. He did advise her that if she were absent without approval on November 13th and 14th, she would probably be suspended.

   
   

6. Respondent did not report to work on November 13 and 14, 1976, nor did she call to report her absence. As a result, the unit to which she was assigned was below minimum coverage and an employee from another unit had to be pulled to fill in for respondent.

   
   

7. When respondent returned to work, she was informed that her pay would be docked for her two days of unauthorized absence and further that she would be suspended without pay for three additional days for excessive absenteeism. Said action was recommended by respondent's immediate supervisor, the personnel director and the superintendent. Respondent was so notified by certified mail dated November 19, 1976, and was advised of her right to appeal this action to the Career Service Commission. She timely perfected her appeal and the undersigned Hearing Officer was designated to conduct the hearing.

   
   

8. Respondent's supervisor, Ms. Ewell, recommended a three day suspension due to respondent's continued excessive absenteeism and the unauthorized leave taken by respondent on November 13th and 14th. Petitioner's personnel director, Mr. Kassees, recommended suspension due to respondent's absence without approval on November 13th and 14th. Mr. Kassees testified that while respondent would not have been suspended were it not for the two days absence in November, her reason for being absent; to wit; to attend a religious assembly, had no bearing on her suspension. Respondent was suspended because of her departure without approval and not because of where she went on the days she missed, according to Kassees.

   
   

9. An employee who has permanent status in the career service may only be disciplined for cause. Florida Statutes Section 110.061. The employing agency has the burden of presenting evidence to support the basis of the charges against the employee being disciplined. Florida Department of Health and Rehabilitative Services v. Career Service Commission and Raya E. Tew, 289 So.2d

   412 (Fla. App. 4th, 1974); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. App. 3rd 1975). Subject only to the limitation that the disciplinary

   action be for good cause, the determination of whether or not an employee is to be suspended and the length of said suspension period lies within the sole discretion of the employing agency. State Department of Pollution Control v.

   State Career Service Commission and Shane H. Hummel, 320 So.2d 846 (Fla. App. 1st, 1975); State Department of Administration, etc. vs. Hunter, 323 So.2d 24 (Fla. App. 1st, 1975).

   
   

10. Thus, the sole issue in this proceeding is whether the petitioner submitted sufficient evidence to support the basis of its charge against respondent--excessive absenteeism and an unauthorized leave--and whether such a charge constitutes good cause for disciplinary action. Upon consideration of the testimony and documentary evidence adduced at the hearing, the undersigned concludes that the employing agency clearly sustained its burden of showing excessive absenteeism and unauthorized leave on respondent's part.

    
    

11. The respondent correctly points to the testimony illustrating that respondent's absence on November 13 and 14, 1976, was the precipitating factor in her suspension and that she would not have been suspended had she not been absent on those dates, the period during which she attended the religious assembly. Citing Florida Statutes Section 112.041(1) and Title VII of the Civil Rights of 1964, 42 U.S.C., Section 2000e-2, respondent contends that she was unlawfully discriminated against on the bases of her CAN'T READ. Further, respondent points to the lack of any evidence that her absence caused the agency undue hardship, loss or presented any danger to resident. Thus, argues respondent, her unauthorized absence cannot serve as the basis for any disciplinary action against her.

    
    

12. Although the respondent's final act of absenteeism was for the purpose of attendance at a religious assembly, the evidence is clear that religion was not the reason she was suspended. Respondent was repeatedly counseled and warned about her absentee problem and that another unapproved absence would warrant her suspension. By making inquiry of other employees as to exchanging days with respondent and instructing respondent to do the same, petitioner made reasonable attempts to accommodate respondent's leave request for November 13 and 14, 1976. Petitioner need not wait for the existence of an actual danger to patients, undue hardship or loss prior to warning its employees by disciplinary action that excessive and unauthorized absence will not be tolerated. The potentially for such events during periods of inadequate supervision of residents of petitioner's facility is obvious.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the petitioner's action of suspending respondent for three days without pay be AFFIRMED.

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

DIANE D. TREMOR

Hearing Officer

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

COPIES FURNISHED:

George L. Waas, Esquire Staff Attorney, HRS 1323 Winewood Boulevard

Suite 406

Tallahassee, Florida 32303

William J. Manikas, Esquire 1215 Thomasville Road

Jacksonville, Florida 32303

Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and

Retirement

Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-000681

Orders for Case No: 77-000681