STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL L. BREWER, )

)

Petitioner, )

)

vs. ) Case No. 86-3259

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on December 4, 1986.

The parties were represented by counsel:

For Petitioner: Marva A. Davis

Post Office Drawer 551 Quincy, Florida 32351

For Respondent: Louis A. Vargas

1311 Winewood Boulevard

Tallahassee, Florida 32301

On June 26, 1986, H. W. Barley, acting superintendent at respondent's Apalachee Correctional Institution, wrote petitioner Carl L. Brewer, "to inform you that you are considered to have abandoned your position as a Correctional Officer I . . . and to have resigned from the Career Service . . . in accordance with Section 22A-7.010(2), . . . in that you did not report for work on . . .

June 21, 1986; June 22, 1986; and June 25, 1986, . . . [and had no] leave of absence for those days." Respondent's Exhibit No. 8. Mr. Brewer received the letter on July 3, 1986. Petitioner's Exhibit No. 11.

In response to Petitioner's Exhibit No. 8, Mr. Brewer filed a request for hearing with the Department of Administration. He subsequently wrote a letter which the Department of Administration received on August 1, 1986. By order entered August 14, 1986, the Department of Administration "accept[ed] the Petition and . . . request[ed] the assignment of a hearing officer," in accordance with Section 120.57(1)(b)3., Florida Statutes (1985). At hearing, the Department of Corrections offered ten exhibits and called four witnesses on its case in chief: John F. Watts, Joel W. Davis, Harold W. Bailey and Howard Kirkland. On its rebuttal case, the Department of Corrections called Robert Franklin Weeks.

Petitioner Brewer offered twelve exhibits and called as witnesses, in addition to petitioner himself, Willie L. Smith, Sylvester L. Simpson and Barbara Ann Brewer, who also testified on surrebutal.

ISSUE

Whether Carl L. Brewer should be deemed to have abandoned his position and to have resigned from the Career Service on account of his absence from work on June 21, 22 and 25, 1986?

FINDINGS OF FACT

1. Since September 10, 1979, Carl L. Brewer has worked for the Department of Corrections at Apalachee Correctional Institution (ACI) in Sneads. On February 4, 1982, if not before, he was furnished a copy of the rules of the Florida Department of Corrections, Respondent's Exhibit No. 10, including Rule 33- 4.002(21), Florida Administrative Code, which he read.

   
   

2. In June of 1986, petitioner Brewer worked as a correctional officer I. He was working in the east field on the morning of June 14, 1986, when he complained to the dormitory sergeant of pain in his left foot, and asked to be reassigned to the dormitory. Sergeant Scipper did reassign him to the dormitory but only till noon, when he was obliged to return to the field.

   
   

3. The following morning Barbara Ann Brewer, who is married to petitioner's brother Walter, came by petitioner's house. Petitioner lives in Bonifay, Florida, two doors down hill from his brother and sister-in-law, who, unlike petitioner, have a telephone in their home. She found him sitting fully dressed in his uniform, except for his left shoe. His foot was swollen. He asked her to take him to the emergency room, but to call ACI first to say he would not be in.

   
   

4. As Correctional Officer Supervisor II John J. Watts explained, it is important for correctional officers to get word to the shift supervisor before the shift starts so that a substitute can be procured.

   
   

5. The shift which petitioner was scheduled to work on June 15, 1986, began at quarter of eight that morning. Mrs. Brewer telephoned ACI at 6:27 A.M. in Bonifay and Correctional Officer H. Bennett answered at 7:27 A.M. in Sneads. Petitioner's Exhibits Nos. 4 and 12. Bonifay is in the central time zone, on what one witness called "slow time," while Sneads is in the eastern time zone. She told Officer Bennett that petitioner would be unable to report for duty on account of his hurt leg, and Officer Bennett "advised [her] to tell Officer Brewer to bring in a doctor[']s slip." Petitioner's Exhibit No. 1.

   
   

6. After the telephone call, Mrs. Brewer helped petitioner into her car. When they reached the emergency room at Doctors Memorial Hospital in Bonifay, no physician was there to see them, but somebody telephoned a Dr. Zafar, who prescribed something over the phone and gave Mr. Brewer an appointment at his office in Chipley for eleven o'clock the following morning. Mrs. Brewer took her brother-in-law home, then went to fetch the medicine. It was Sunday and the pharmacist met her at the pharmacy specially to fill the prescription.

   
   

7. The next day, Monday the 17th, Dr. Zafar saw Mr. Brewer and sent him back to the hospital for x-rays, which Dr. Amin examined. As far as they could tell, nothing was broken, but the foot remained swollen and painful and Dr. Zafar admitted him to the hospital.

   
   

8. Although Sunday and Monday had been days off, petitioner was scheduled to work again on Tuesday, June 18, 1986, from 7:45 A.M. to 4:15 P.M. At her brother-in-law's request, Mrs. Brewer telephoned ACI at 7:10 A.M. eastern time

   on June 18, 1986. Petitioner's Exhibit No. 12. She told shift supervisor Robert Franklin Weeks that Carl Brewer had been admitted to the hospital and would probably be there about a week. He told her to tell Officer Brewer to let ACI know when he would be back to work. In a contemporaneous memorandum, Officer Weeks wrote:

   
   

   stated was in hosp for approx 1 wk I told her to advise Brewer to contact the inst and let us know when he would be back to work.

   Petitioner's Exhibit No. 2.

   
   

   At hearing, Mr. Weeks testified that he told Mrs. Brewer that she was to tell Carl Brewer to telephone ACI that day from his hospital bed, but Mrs. Brewer denied this, and the weight of the evidence supports the view that Weeks did not specify that Brewer call that day. Mr. Weeks does not mention any deadline in the contemporaneous memorandum he wrote. Petitioner's Exhibit No. 2. The telephone conversation only lasted one minute, according to the telephone bill. Petitioner's Exhibit No. 12. There was a telephone in petitioner's hospital room.

   
   

9. Petitioner had earlier asked his doctor when he would be able to go back to work, but the doctor had not named a date, answering that he should not return to work before the pain and swelling subsided. On June 19, 1986, Mr. Brewer received a letter from Blue Cross-Blue Shield of Florida, advising that his "stay in the hospital is CERTIFIED FOR 04 DAYS." Petitioner's Exhibit No.

1. He took this to mean he might have to bear the expense of a longer hospital stay personally, and persuaded Dr. Zafar to discharge him. Brewer left the hospital at half past six on the evening of June 20, 1986.

   
   

   1. In agreeing to his patient's suggestion, Dr. Zafar stipulated that Mr. Brewer stay at home, keep his left foot elevated, and collect urine samples regularly. Mr. Brewer followed this regimen faithfully and did not leave home, except perhaps to go to the hospital for tests, until, with foot still swollen and painful, he set out on crutches to keep an appointment at Dr. Zafar's office at four o'clock on Friday afternoon, June 27, 1986. In the course of this visit, Dr. Zafar told Mr. Brewer he could not return to work before July 10, 1986.

      
      

   2. Meanwhile, however, Colonel Joel W. "Bill" Davis, chief correctional officer at ACI, had telephoned Doctors Memorial Hospital and learned of petitioner Brewer's discharge. Even though Colonel Davis viewed it as an exception to a clear policy, ACI authorized sick leave for the time Brewer spent in the hospital. In keeping with this alleged non-rule policy, however, ACI purported to deny Brewer sick leave for June 21 and 22, because he had not personally telephoned his supervisor (or designated representative) daily. Mr. Brewer was not scheduled to work on June 23 or 24, but ACI again purported to deny sick leave on June 25, and a letter dated the following day, advising that he was deemed to have abandoned his position, went out over the signature of Harold W. Bailey, as acting superintendent at ACI. Respondent's Exhibit No. 8.

      
      

   3. By the time petitioner learned he might be able to return to work on July 10, 1986, the business office at ACI had closed for the weekend. This was the reason he gave at hearing for not asking his sister-in-law to call ACI to relay the doctor's prognosis till Monday morning, even though Saturday and Sunday were not days off for him. She did call on his behalf on Monday, June 30, 1986, and tell the person who answered that Mr. Brewer planned to return to

      work on July 10, 1986. At no time was she told that petitioner needed to call himself or that he no longer had a job.

      
      

   4. On July 3, 1986, petitioner Brewer received and signed for the letter Assistant Superintendent Bailey had mailed on June 26, 1986. Mr. Brewer reported for work on July 10, 1986, nevertheless, and presented a certificate signed by Dr. Zafar indicating he had been under Dr. Zafar's care for "[p]ossible cellulitis" from June 15 to July 10, 1986 and certifying that Brewer was able to return to work on July 10, 1986. Petitioner's Exhibit No. 9. This certificate was received as evidence of its existence. To the extent it corroborates other evidence of petitioner's illness, like the letter Dr. Zafar wrote on November 14, 1986, Petitioner's Exhibit No. 10, it is hearsay; Dr. Zafar did not testify at hearing. But these exhibits supplement and explain independent evidence, mainly the testimony of other witnesses. The hospital record in evidence as petitioner's Exhibit No. 5 also reflects a diagnosis of cellulitis.

      
      

   5. Not uncommonly relatives of sick and injured ACI employees call in to report they will not be at work. In these instances, employees receive sick leave after the fact if they return to work with a doctor's excuse.

      
      

   6. On February 10, 1986, Mr. Brewer had been reprimanded for taking sick- leave said to be unauthorized, but he was never reprimanded for failure to call in personally, and had not otherwise been disciplined for unauthorized sick leave.

      
      

   7. Carl Brewer did not, in fact, abandon his position as a correctional officer at ACI. He fell ill and tried to take sick leave. The Department of Corrections authorized sick leave for part of the absence occasioned by his illness. To the extent departmental employees at ACI proposed to deny sick leave authorization for the remainder of the absence, they acted in violation of applicable personnel rules.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Department of Corrections relies on Rule 22A- 7.010(2), Florida Administrative Code, which creates a presumption, one that was held to be rebuttable in Clara M. Penney v. Department of Insurance, No. 85-1530 (DOA; January 31, 1986), that an employee absent without leave for three days has given up his job. The rule is intended to strike a "fair balance" between "swift replacement of ineffective public employees," Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982) and "job security and retention." Id.

      
      

   9. In upholding Rule 22A-7.10B, as the abandonment rule was then numbered, against the challenge that it was a stratagem to deprive covered employees of a hearing to which they were entitled before the Career Service Commission, the court in Cook v. Division of Personnel, Department of Administration, 356 So. 2d 356 (Fla. 1st DCA 1978) pointed out that no such hearing was available to an employee who submitted a written resignation and stated:

      
      

      While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be

      some point at which the Division may be able to say that the employee is not returning, process the paper work and refill the vacant position. Rule 22A-7.10B puts all Career Service employees on notice that absence without authorized leave for three consecutive days is tantamount to a formal resignation. The particular time period is less significant than the principle which provides for some term of absence being

      construed as a resignation. At 358.

      
      

      The Department of Corrections failed in the present case, however, to prove the predicate which would give rise to a presumption of abandonment. The evidence did not establish that the sick leave petitioner Brewer took was unauthorized under applicable rules.

      
      

   10. Although agency personnel took the position that he was not entitled to sick leave after his discharge from the hospital, because he did not call in every day, the rules in force at the time did not require that he do so. The pertinent provision in the rules of the Department of Corrections reads:

       
       

       Employees shall not be . . . absent

       . . . without permission Each

       employee shall notify his immediate supervisor or designated repre- sentative prior to his scheduled work shift in the event he expects to be absent from duty due to illness or other reason. Rule 33-

       4.002(21), Florida Administrative Code.

       
       

       This rule requires that notice be given beforehand and that permission be obtained, but does not require that permission or authorization be obtained beforehand. The practice at ACI reflected this. With notice ahead of time, another employee could be asked to stay on for a second shift or be summoned from home. Only after the absence, once the employee had returned to work, usually with a slip from a doctor, was it decided whether sick leave would be allowed.

       
       

   11. The practice as ACI also reflected an interpretation of Rule 33- 4.002(21), Florida Administrative Code, under which an employee was permitted to give notice by arranging for another person to call on his behalf. Notice of an employee's impending absence on account of illness has never been held deficient on account of having come from a relative, rather than out of the employee's own mouth. Cf. Clara M. Penney v. Department of Insurance, No. 85-1530 (DOA; January 31, 1986) (husband requested leave for jailed wife). Rule 22A- 8.11(2)(c), Florida Administrative Code, expressly authorizes "the employee's representative" to give notice.

       
       

   12. Sick leave differs from the emergency leave requested in the Penney case and in Florida State University v. Brown, 436 So. 2nd 287 (Fla. 1st DCA 1983), because emergency leave is discretionary. Unless a request for emergency leave is granted, an employee is not entitled to take emergency leave. In a

       genuine case of illness, however, use of accrued sick leave credits is a matter of right. The prerequisite for sick leave is notice, and there is no requirement that any request be granted before leave begins. Rule 22A- 8.11(2)(c), Florida Administrative Code, provides:

       
       

       Notification of absence due to illness, injury, or exposure to a contagious disease shall be given to the appropriate supervisor

       the employee or the employee's representative as soon as possible on the first day of absence. (emphasis supplied)

       
       

       As required by the rule, petitioner Brewer's "representative", Mrs. Brewer, gave notification to the appropriate supervisor or his designate before the work day began on petitioner's first day of absence.

       
       

   13. An employee who has taken sick leave must certify that he has done so on account of "personal illness," Rule 22A- 8.11(2)(b), Florida Administrative Code, or for some other other reason recognized by the rule. If the absence has lasted more than three days, the employer may, and, if the absence has exceeded ten consecutive days, the employer must, require medical certification, as well; but such certification ordinarily takes place after the illness and absence have come to an end. The only request for medical certification ever made of Mr. Brewer was that he bring a doctor's slip when he returned to work, which he did. The record is devoid of any indication that petitioner was malingering.

       
       

   14. Resort to the abandonment rule is allowed only if an "employee...upon request by the agency head, refuses to comply with these rules." Rule 22A- 8.11(2)(d)(5), Florida Administrative Code. The evidence did not show any failure on petitioner's part to comply with the rules governing sick leave, much less a refusal to honor a request by the agency head to comply with the rules. Here, after authorizing sick leave for four days, corrections personnel deemed Mr. Brewer to have abandoned his job on account of his 5th, 6th and 7th days of absence from work, long after his sister-in-law had informed his immediate supervisor or the supervisor's designate that personal illness prevented his working. Nothing in this record suggests that petition Dr. Brewer intended in fact to abandon his job, or that his absence from work on June 21, 22 and 25, 1986, was unauthorized under applicable rules.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

1. That the Department of Administration rule that Carl L. Brewer has not abandoned his position as corrections officer I with the Department of Corrections, and has never lost his membership in the Career Service.

   
   

2. That the Department of Administration rule that petitioner have twenty days in which to file a petition for a career service hearing to seek appropriate relief in the event the Department of Corrections fails voluntarily

(a) to reinstate Carl L. Brewer as a Corrections Officer I; (b) to pay Carl L. Brewer all moneys he would have earned if he had not been deemed to have abandoned his position, less any moneys the Department of Corrections may have

paid him because he was deemed to have abandoned his position;. and (c) to pay Carl Brewer for reasonable attorney's fees and costs incurred in this proceeding.

DONE AND ORDERED this 8th day of January, 1987, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3259

Petitioner's proposed findings of facts Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10,

12, 13, 16, 17 and 19 through 35 have been adopted, in substance, insofar as material.

Petitioner's proposed finding of fact No. 3 has been adopted, in substance, insofar as material, except that only the left foot was affected, so it was only the left shoe that he could not put on.

Petitioner's proposed finding of fact No. 11 has been adopted, in substance, except that he was sent for x-rays before being admitted to the hospital according to the testimony.

Petitioner's proposed finding of fact No. 14 has been adopted, in substance, except that, although he should have been granted sick leave for the whole period, sick leave was not granted in fact (although required by law to be granted) for the entire period.

Petitioner's proposed finding of fact No. 15 has been adopted, in substance. Whether or not officer Bennett's testimony in this regard is inherently incredible, it has not been credited.

Petitioner's proposed finding of fact No. 18 has been adopted in substance insofar as material, except that it was not proven that he could not afford to stay in the hospital.

Respondent's proposed findings of facts Nos. 1, 2, 3, 5, 6, 7, 8, 10, 11,

14, 18, 20 and 21 have been adopted, in substance, insofar as material.

Respondent's proposed finding of fact No. 4 is immaterial except to the extent addressed in the recommended order. This is an abandonment case, not a career service suspension case, in which prior, progressive discipline might be pertinent (although petitioner may ultimately be obliged to initiate career service proceedings to obtain redress for his de facto suspension). With respect to none of the prior incidents, moreover, did the proof adduced in the present case establish violations of Rule 33-4.002(21), Florida Administrative Code.

Respondent's proposed finding of fact No. 9 has been adopted, in substance, except for the third sentence, which is contrary to the weight of the evidence.

Respondent's proposed findings of facts Nos. 12, 13, 15 and 16 have been adopted, in substance, with the qualification that although "carried on

unauthorized leave," petitioner was entitled to sick leave, as far as this record shows.

Respondent's proposed finding of fact No. 17 has been adopted, in substance, except that three, not four, days are relied on in the letter.

With respect to respondent's proposed finding of fact No. 19, petitioner signed for the letter on July 3, 1986.

COPIES FURNISHED:

Marva A. Davis

Post Office Drawer 551 Ouincy, Florida 32351

Louis A. Vargas

1311 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-003259

Orders for Case No: 86-003259