vs. ) CASE NO. 86-3038
Respondent. )
Ft. Myers, Florida
For Respondent: Anthony N. DeLuccia, Jr., Esquire
Ft. Myers, Florida
A formal administrative hearing was held in this case in Ft. Myers, on September 24, 1986. The issue is whether Petitioner, Shirley Johnson, abandoned her position with Respondent, Department of Health and Rehabilitative Services, under Rule 22A-7.010(2), Florida Administrative Code (1985 Supp.). It should be re-emphasized to both parties that the issue is not whether HRS would have good cause to discipline Petitioner on the basis of her attendance record.
On July 8, 1986, Respondent, Department of Health and Rehabilitative Services, sent Petitioner, Shirley Johnson, a letter to confirm her separation from employment as a Human Services Worker II in Pierce Cottage, Unit II, Facility IV, at the Gulf Coast Center in Ft. Myers. At the time, Johnson was a permanent employee of HRS. Her job at Pierce Cottage was to help care for 29 severely profoundly mentally retarded persons.
On or about May 6, 1986, HRS' Gulf Coast Center instituted new policies for applying for authorization for leave from work. /1 No longer would Petitioner and fellow employees be required to notify their immediate supervisor, Twila Bevins, of their absence or tardiness. Instead, the employees are responsible only to notify the group shift supervisor on duty at Pierce Cottage. The employee only advises the group shift supervisor of the employee's intent to apply for authorization for leave and the amount and time the leave would be taken. The group shift supervisor does not approve leave. Authorization for leave must be obtained directly from the immediate supervisor, Twila Bevins, by explaining the reasons for the leave request which would entitle the employee to authorization for leave. Application for authorization for leave can be made either before or after the group shift supervisor is notified. However, no leave can be authorized for an employee who did not personally give notification of anticipated absence unless the employee is incapacitated.
Petitioner is a mother of six. She also cares for her father, who has heart disease, and for her mother, who is overweight and has limited mobility. After a separation she has been reconciled with her husband, who, after being out of work, is now employed and contributes to the support of the family.
On July 2, 1986, Petitioner and her immediate supervisor agreed that Petitioner would have July 3 and 4 off, but would work from 6:30 A.M. to 2:30
P.M. on July 5. Petitioner also was scheduled to work on July 6, 7 and 8, 1986.
During the early morning hours of Saturday, July 5, between approximately 1:00 A.M. and 4:30 A.M., Petitioner's father had a heart attack and Petitioner and her husband went with him to the hospital and stayed there while he was being cared for. When they returned home at approximately 4:30 A.M., they were told by Petitioner's mother that Petitioner's brother was in jail in Ocala and that she was very concerned about her son. At her mother's request, Petitioner and her husband agreed to drive to Ocala to bail her brother out of jail. When they arrived in Ocala, Petitioner's husband, who was driving when they arrived in Ocala, was arrested for driving with a license under suspension and was himself put in jail. Petitioner herself then had to drive back to Ft. Myers to get money to bail her husband out of jail, drive back to Ocala to bail him out, and drive her husband back to Ft. Myers, a drive of a total of approximately 600 miles. Petitioner did not work and did not call in to work on Saturday, July 5. She was absent without authorized leave.
On Sunday, July 6, 1986, Petitioner called into work at 6:30 A.M. to explain to the shift supervisor why she had been absent the previous day, and to notify him that she would not be in until approximately 10:00 A.M. However, tired from her ordeal the previous day and developing a severe headache, Petitioner did not work on Sunday, July 6. She called in later in the morning and spoke to one of the women working in Pierce Cottage but did not speak to the group shift supervisor. She was again absent without authorized leave.
On the following morning, Monday, July 7, 1986, Petitioner called in at 6:25 A.M. to tell the group shift supervisor she would be late getting in to work. However, her headache got worse, and the pain traveled down to her neck and down one side of her body. The pain was so severe that she was crying uncontrollably. Although she still told her husband that she wanted to go to work to avoid any disciplinary problems, he talked her into letting him telephone Pierce Cottage to say that she would not be able to work on July 7.
At approximately 6:45 A.M., her husband telephoned the group shift supervisor and told him that Petitioner would not be at work at all that day because of her physical condition.
On Tuesday, July 8, 1986, Petitioner still was in approximately the same physical condition. At approximately 7:00 A.M., her husband telephoned the group shift supervisor at Pierce Cottage, reported her physical condition, and reported that Petitioner would not be in to work on July 8. Petitioner's husband also reported that Petitioner would probably have to see a doctor that day.
Petitioner did indeed go to the Lee County Health Department on July 8, 1986, to be seen for her physical condition. Petitioner went to the Lee County Health Department because she and her husband could not afford to pay a private doctor. When Petitioner arrived at the Health Department at approximately 2:00 P.M., there was no doctor available to see her. She left at approximately 3:00
P.M. with a note confirming the she had been at the Health Department between 2:00 and 3:00 P.M., and that she needed a follow-up appointment.
Although Petitioner still was suffering from a severe headache on Wednesday, July 9, 1986, she went to work, turning in her note from the Health Department. However, upon arriving, she was advised of HRS' July 8 letter confirming her separation from her employment. After reciting the grounds upon which HRS had taken the position that Petitioner should be deemed to have abandoned her position, the letter stated: "In the event it was not your intention to resign from employment, you are instructed to immediately contact me and provide a reasonable and acceptable explanation for your unauthorized absence from your employment."
Petitioner was absent without authorized leave on July 5 and 6, 1986. Petitioner was not incapacitated from telephoning her group shift supervisor on July 7 and July 8, 1986. However, under the circumstances, it was reasonable for her to have her husband telephone for her. She did not intend to abandon her position.
As of July 2, 1986, Petitioner had 27 hours of annual leave and 8 hours of compensatory time in her accumulative leave records and available for use July 5 - 8, 1986. She also would earn an additional 5 hours of annual leave and 4 hours of sick leave by July 10, 1986. This would have been enough to cover her absences and permit her to be paid during her absences if authorized and approved.
CONCLUSIONS OF LAW
Rule 22A-7.O10(2)(a), Florida Administrative Code (1985 Supp.), states:
An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service.
An employee who has Career Service status and separates under such circumstances shall not have the right of appeal to the Career
Service Commission; however, any such employee shall have the right to petition the depart- ment for a review of the facts in the case
and a ruling as to whether the circumstances constitute abandonment of position.
Rules 22A-8.10(a) and (b) and 22A-8.11(2)(a), Florida Administrative Code (1984), provide that annual leave and sick leave, respectively, "shall only be used with the approval of the proper authority within the agency." Under Rule 22A-8.16(3)(a), Florida Administrative Code (1984), other leave without pay may be granted upon request "provided the agency deems such leave to be justified and not detrimental to the operations of the agency."
In this case, the Department's Gulf Coast Center had established a policy as of May 6, 1986, under which no leave could be authorized to an employee who did not personally give notification of an anticipated absence. Under this policy, Petitioner's supervisors never inquired into or exercised discretion to determine whether Petitioner's leave on July 7 and 8 should have been authorized. Under the policy, the leave was automatically unauthorized.
Rule 22A-7.010(2)(a), Florida Administrative Code (1985 Supp.), should be construed in favor of the employee. It sets out circumstances under which an employee is deemed to have abandoned his position and to have resigned from the Career Service. An abandonment by operation of the rule therefore results not only in loss of the position but also in forfeiture of all rights under the Career Service Commission, including the right of appeal to the Career Service Commission. The harsh consequences of a forfeiture under the rule require that the rule be construed in favor of the employee.
Rule 22A-7.010(2)(a) must be construed to require the agency to consider and exercise its discretion whether leave of absence should be authorized in a particular instance. HRS' Gulf Coast Center policy should not be permitted to relieve the agency of its responsibility to exercise its discretion in the case of Petitioner's absences on July 7 and 8.
In addition, Rule 22A-7.010 only empowers an agency to take preliminary, free-form agency action when it deems an employee to have abandoned his position. If an employee petitions for a review of the facts and a ruling, the Department of Administration must determine "whether the circumstances constitute abandonment of position." HRS' July 8, 1986 letter confirming Petitioner's separation from employment seems to concede this when it invites Petitioner to provide a reasonable and acceptable explanation for her unauthorized absence if it was not her intention to resign from employment.
In this case, the circumstances showed that the Petitioner did not intend to and did not abandon her position.
It should be re-emphasized that no opinion is expressed whether Petitioner or any other HRS employee should be disciplined based on Petitioner's attendance record and circumstances surrounding Petitioner's attendance record. Those issues would be open for determination in a proceeding before the Public Employees Relations Commission in the event HRS seeks to discipline the Petitioner. See Section 74, Chapter 86-163, Laws of Florida (1986).
Based upon the foregoing Findings of Fact' and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order granting the petition in this case and ruling that the circumstances of this case do not constitute an abandonment of Petitioner's position.
RECOMMENDED this 3rd day of November, 1986, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1986.
1/ HRS Exhibit 1 is an excerpt from an HRS pamphlet entitled "Employee Rules of Conduct," dated October 1, 1977. There was absolutely no testimony authenticating the document or otherwise forming a predicate for its admission in evidence. Petitioner's objection was therefore sustained. However, HRS Exhibit 1 states only, in pertinent part:
"Every employee shall notify the immediate supervisor or designated representative of an anticipated absence."
In this case, the other evidence established that the group shift supervisor was the person designated to be notified in case of an anticipated absence.
Ms. Shirley Johnson 2209 Barden Street
Ft. Myers, Florida 33901
Anthony N. DeLuccia, Jr., Esquire HRS District VIII Legal Counsel Department of Health and Rehabilitative Services
Ft. Myers, Florida 33906
Gilda H. Lambert Secretary
