STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-667

) CAREER SERVICE NO. 77-190

BARBARA CALHOUN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a Public hearing in this case on May 3, 1978 in Apopka, Florida. Mrs. Barbara Calhoun (sometimes referred to as "Respondent" herein) appealed certain disciplinary personnel actions taken by Petitioner against her, to wit: a five-day suspension without pay for "excessive absenteeism."

The issue posed for decision herein is whether or not the cited action by the Department of Health and Rehabilitative Services (sometimes referred to as "Petitioner" herein) is supported by competent and substantial evidence and therefore should be sustained.

APPEARANCES

For the Petitioner: Douglas Whitney, Esquire

1350 North Orange Avenue Winter Park, Florida 32789

For the Respondent: Walter Thomas, Representative

International Union, AFSCME Forger Building

2255 Phillis Street

Jacksonville, Florida 32204

Based on my observation of the witnesses and their demeanor while testifying, the entire record compiled herein including certain documented evidence introduced at the hearing, I hereby make the following:

FINDINGS OF FACT

1. Barbara Calhoun, Respondent, is a Career Service employee with permanent status. She has been employed by the Petitioner since approximately 1969 and is presently employed in the capacity of a Resident Lab Assistant (RLA).

   
   

2. Mary Ellen Weaver, Nursing Director at Sunland Center at District VII, is in charge of the nurses and other staff personnel at the Sunland Center in

   Orlando. Mrs. Weaver testified that she approved initially the recommendation by Mrs. Calhoun's supervisor that she be suspended for a continued pattern of absenteeism which had been documented by three previous reprimands, the first of which occurred approximately September 16, 1976. The first reprimand was an oral reprimand of September 16, 1976, and was based on an excessive pattern of sick leave in conjunction with days off. The second one occurred on November 29, 1976, and was submitted by a Mrs. Renner, R.N. and the reviewing officer on that reprimand was Mrs. Graham, R.N. III. The third reprimand occurred on February 5, 1977, a written reprimand the basis therein was excessive absenteeism, with the reviewing officers being Mrs. Renner and Mrs. Graham. (See Petitioner's Exhibits Nos. 1, 2 and 3.) Documentary evidence introduced reveals that from February 11, 1976, to June 23, 1977, the Petitioner accumulated approximately 19 days of unscheduled absences with the majority of such absences occurring in conjunction with days off and most of which were leave without pay (LWOP) because during the Respondent's approximately eight year employment tenure, she had accumulated no annual or sick leave. (See Joint Exhibit 1.)

   
   

3. Without going into a recitation of all of the numerous days in which the Respondent was absent, the following is illustrative. On February 11, 1977, Respondent called in sick which was also without pay because she had accrued no leave. The following day the Respondent called in sick and again this absence was without pay and unscheduled. On March 6, 1977, Respondent had a friend call to advise that she was sick with the flu and again a message was sent the following day, on March 7, 1977. On March 26 the Respondent called in sick which was before she was off for two days. On April 18 the Respondent again called in ill. On May 2 Respondent requested annual leave, which was granted. On May 3 the Respondent called in sick and obtained permission to use annual leave since there was no more sick leave accrued. On May 12 Respondent called in sick and again there was no annual leave accrued to cover the absence. The following day the Respondent called in sick, which was prior to her weekend off. On June 1, 1977, Respondent called in sick after being off on May 30 and May 31. On June 16, 1977, Respondent was off and used an annual leave day, which was unscheduled and without prior approval. On June 23 Respondent called in sick, which was unscheduled. It was at this juncture that Respondent's supervisor recommended a suspension, which was approved by Mrs. Weaver and ultimately sent to a Mr. Windsor for final approval.

   
   

4. The Respondent offered no explanation to explain, refute or otherwise contradict the numerous absences nor did she offer any proof of any kind to establish that she was in fact sick in such a sporadic form which occurred in conjunction with her days off. 1/

   
   

5. In view of the above, the undersigned concludes that there is competent and substantial evidence to support the Petitioner's disciplinary action directed toward the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this action. Chapter 120.57(1), F.S.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, F.S.

   
   

8. The authority of the Petitioner (Commission) is derived from Chapters 112 and 110.061, F.S.

9. Competent and substantial evidence was offered to establish and sustain the Petitioner's action in suspending the Respondent for period of five days without pay as outlined in the letter dated July 15, 1977, by Noel Windsor, Superintendent.

RECOMMENDATION

Based on the foregoing findings and conclusions of law, it is hereby recommended the personnel action of the Petitioner, Department of Health and Rehabilitative Services, be sustained.

RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL

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 27th day of July, 1978.

ENDNOTE

1/ I considered the fact that the Respondent was not asked to substantiate her numerous days off; however, in view of the numerous occurrences of sickness which occurred within such a close proximity of days off, the record supports the conclusion that the Respondent was in fact abusing the sick leave policy established by the Petitioner.

COPIES FURNISHED:

Ms. Barbara Calhoun Post Office Box 353 Apopka, Florida 32703

Dorothy B. Roberts

Career Service Commission

443 Carlton Building Tallahassee, Florida 32304

Walter Thomas, Esquire International Union, AFSCME Forger Building

2255 Phillis Street

Jacksonville, Florida 32204

Douglas Whitney, Esquire 1350 North Orange Avenue Winter Park, Florida 32789

Docket for Case No: 78-000667

Orders for Case No: 78-000667