STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM MARCUM, )

)

Petitioner, )

)

vs. )

) CASE NO. 77-2073 DEPARTMENT OF HEALTH AND ) CS NO. 77-235 REHABILITATIVE SERVICES, YOUTH )

SERVICES PROGRAM OFFICE, )

CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on April 19th in Room 309A, 300 North Dixie Highway, West Palm Beach, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was referred to the Division of Administrative Hearings by the Career Service Commission to conduct an evidentiary hearing to determine if the agency had good cause to discipline the employee based upon the facts described in the letter of disciplinary action dated August 24, 1977.

The agency presented the testimony of supervisors who had observed the employee when he appeared to be asleep on the job. Progressive disciplinary steps were taken and finally the employee was suspended fifteen (15) calendar days for sleeping on the job. The employee denied that he was asleep, and argued that the action taken against him was too harsh.

FINDINGS OF FACT

1. William Marcum is a career service employee with appeal rights to the Career Service Commission.

   
   

2. In April, 1977, Marcum received a written reprimand from his supervisor, Alphonso Crowell, for being asleep on the job.

   
   

3. On July 19, 1977, Alphonso Crowell observed Marcum, who was on duty in the dormitory of the Okeechobee School for Boys, from outside the dormitory through a large window. Crowell observed Marcum seated at his desk with his head leaning against the wall. Crowell could not see Marcum's face, but Marcum did not move for approximately twenty (20) minutes during which time Crowell observed him. Crowell directed Mr. George LaGrange, Marcum's direct supervisor, to relieve Marcum immediately.

   
   

4. This incident resulted in counseling by the superintendent of the school, who determined that Marcum was suffering from arthritis and taking aspirin for this problem. Marcum was counseled but no disciplinary action was

   taken because he had been taking medication and was scheduled to be hospitalized.

   
   

5. On August 15, 1977, Marcum returned to work having been pronounced fit for duty by his doctor and the agency's doctor.

   
   

6. On August 17, 1977, George LaGrange walked into the dormitory to which Marcum was assigned at approximately 4 A.M. and approached Marcum from the right rear. LaGrange, wearing boots, walked to within six (6) feet of Marcum and observed Marcum for about five (5) minutes. Marcum was slumped forward in his seat and did not move during this period. LaGrange then spoke to Marcum and Marcum immediately returned and replied to LaGrange.

   
   

7. Marcum denies that he was asleep on either occasion, but asserts that he was absorbed in thought about his personal affairs. Marcum pointed out that neither Crowell nor LaGrange observed his face and therefore could not tell whether he was asleep.

   
   

8. Marcum's duties were direct custodial supervision of the children in the dormitory to which he was assigned.

   
   

   CONCLUSIONS OF LAW

   
   

9. The personnel rules and regulations specifically prohibit sleeping on the job. The evidence presented in this case was not conclusive whether Marcum was asleep. However, a reasonable inference can be drawn that he was either asleep or so deep in concentration that he was not able to carry out his duties of providing custodial care at the entrance to the dormitory at Okeechobee School for Boys to which he was assigned.

   
   

10. Marcum's conduct constitutes a violation of the Personnel Rules and Regulations.

    
    

11. Mr. Marcum asserts that the fifteen (15) day suspension which he received was too harsh for a second offense. Marcum had previously received a written reprimand for two (2) incidents of sleeping on the job in addition to having been counseled, but not disciplined for sleeping on the job, while he was taking medications. Prior to this last incident, Marcum was pronounced medically fit for duty by his own doctor and the agency's doctor. Two (2) days later, Marcum was observed by his supervisor, George LaGrange, either asleep or so inattentive to his duty that Marcum did not react to LaGrange who walked to within six (6) feet of him while wearing cowboy boots. It is not really determinative to this case whether Marcum had his eyes closed or open or whether Marcum was "clinically" asleep. The facts show that he was so inattentive to his assigned duties that he could not detect LaGrange's approach to him. Marcum's duty was custodial care to the children in the dormitory. If Marcum failed to detect LaGrange's approach, it is reasonable to assume that he would not have observed a child's exit from the dormitory. Whether asleep, or absorbed in concentration, he failed to be alert and attentive to his duty. Marcum's actions were the same as if he had been asleep and the disciplinary as taken for good cause.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends to the Career Service Commission that they sustain the disciplinary action taken by the agency against William Marcum.

DONE and ORDERED this 28th day of April, 1978, 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 28th day of April, 1978.

COPIES FURNISHED:

William Marcum Route 3, Box 3575

Okeechobee, Florida 33472

K. C. Collette, Esquire

1665 Palm Beach Lakes Boulevard Suite 800

West Palm Beach, Florida 33401

Dorothy Roberts, Appeals Coordinator Career Service Commission

530 Carlton Building Tallahassee, Florida 32304

Art Adams, Director

Health and Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 77-002073

Orders for Case No: 77-002073