vs. ) CASE NO. 89-5623
Respondent. )
Pursuant to notice, this matter came on for hearing in Marianna, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on June 13, 1990.
For Petitioner: H. Michael Madsen, Esquire
Messer, Vickers, Caparello, French, Madsen & Lewis, P.A.
For Respondent: John L. Pearce, Esquire
The issue addressed in this proceeding is whether Petitioner abandoned his position at the Sunland Center in Marianna, Florida.
Petitioner filed his Proposed Recommended Order on July 3, 1990 and Respondent filed his Proposed Recommended Order on July 29, 1990, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.
Sunland Marianna is a facility which cares for the mentally retarded and is operated by the Department of Health and Rehabilitative Services.
Because of the type care needed by Sunland clients and federal funding, it is very important and federal rules require that a minimum of three staff be on duty during the first and second shifts.
When staff are out without authorization, other employees must be pulled from other cottages, creating a shortage in other areas, or employees are called from home causing overtime payments.
At the time of the final hearing, Petitioner Michael Simmons was 38 years old. He was born and raised in Chipley, Florida, and is a graduate of Chipley High School. After services in the U.S. Marine Corps, he attended Washington County Vo-Tech School and received a certificate of completion for the nurse's assistant course. In 1987, he attended and completed a course of study entitled "Special Care Unit Staff Training," offered by the Northwest Florida Mental Health Center.
In late May, 1988, Mr. Simmons applied for a position as a Human Services Worker I, at the Sunland facility operated near Marianna, Florida by Respondent, Department of Health and Rehabilitative Services ("HRS"). According to his employment file, at the time of his application, Mr. Simmons was married to Rose M. Simmons and had one son, Erick, born June 30, 1984.
Mr. Simmons' employment application and other papers he filled out at that time listed a residence address in Chipley, Florida. Mr. Simmons had no phone at that address, and he listed the phone number (904) 638-0195 as his number. He testified that this was the unlisted number of his wife's grandmother, who later died in early August, 1989.
Mr. Simmons was selected from among 62 applicants for the vacant position, and was hired as a Human Services Worker I on June 3, 1988, at a gross biweekly salary of $392.92. He successfully completed his probationary employment period and achieved permanent career service status. As of August 5, 1988, his gross biweekly salary was raised to $430.82.
Initially, Mr. Simmons worked the evening shift, from 3:00 P.M. until 11:00 P.M., and was assigned to Hayes cottage. He was one of three persons assigned to that cottage as Human Services Worker, with first-line responsibility for care and supervision of 23 mentally retarded residents of that cottage.
Mr. Simmons' first Employee Performance Appraisal, dated December 2, 1988, rated him overall as exceeding job performance standards and stated in general that he had an excellent attitude in his position. The only mention in the Appraisal of job attendance was the notation that Mr. Simmons had difficulty in correctly filling out his leave and attendance record. The Appraisal was signed by Dorothy S. Bryan as his immediate supervisor and by Clay S. Shirey as reviewer.
Mrs. Rose Simmons gave birth to the couple's second child, a daughter, during Mr. Simmons' first year of employment with HRS. The daughter was about ten months old at the time of Mr. Simmons' termination from his position in September, 1989.
Mr. Simmons worked at two other jobs during the first months of his employment with HRS. In early August, 1989, Mr. Simmons moved to Tallahassee, where Mrs. Simmons had obtained employment. Mrs. Simmons had moved earlier, and the couple resided together in Tallahassee after Mr. Simmons moved. At that time Mr. Simmons worked two jobs. His other job was at a nursing home in Bonifay. His hours in that job were from 6:00 A.M. until 1:00 P.M. He resigned from the Bonifay job before the events giving rise to his termination.
Because of his difficult work schedule and an unreliable car, Mr. Simmons was late for work a number of times even before he moved to Tallahassee. His attendance records show that his superiors approved differing types of leave with pay on all of these occasions, except for the tardiness which occurred August 31, 1989, a few days before his termination.
According to testimony of Mr. Simmons' superiors and documents in evidence as to official Sunland policy, leave with pay ordinarily was authorized only if the employee reported in advance that he or she would be tardy or absent. Sunland Operating Procedure 60-2 requires that employees who are late or absent inform their supervisor before the beginning of the shift, or failing that, telephone within seven minutes after the start of the shift. This Policy also requires supervisors to document patterns of unexcused absences and tardiness on certain forms, none of which appear in Mr. Simmons' employment file or otherwise in the record. Mr. Shirey testified that Mr. Simmons usually did not call in advance when he was late for work.
In February or March, 1989, Ms. Angie Russ replaced Ms. Bryan as Mr. Simmons' immediate supervisor. She continued to approve leave on the occasions, when Mr. Simmons was late for work, usually once or twice each two-week pay period.
On April 6, 1989, Clay Shirey and Angie Russ conferred with Mr. Simmons about his job performance. As reflected by a memorandum dated April 7, 1989, they told him his performance in accurately completing client training data sheets was not adequate. The memorandum also indicates discussion of the "failure of [Hayes Cottage] staff to work together as a cohesive unit," and the need for staff (and, inferentially, Mr. Simmons) to take a more active role in client interaction. Mr. Simmons did not agree with this assessment and refused to sign the memorandum.
On May 5, 1989, Clay Shirey and Angie Ross conferred with Mr. Simmons about his being late for work. A memorandum dated May 12, 1989, reflects this conference. For pay periods after that date, Mr. Simmons' supervisors continued to approve leave with pay when he would be late for work, usually 15 or 30 minutes each time.
Commencing with the May 12, 1989, pay period, Mr. Simmons' hours were changed so that instead of working from 3:00 until 11:00 P.M., he worked from 2:00 until 10:30 P.M. The record does not directly reveal the reason for this change.
On June 15, 1989, Mr. Simmons' next Employee Performance Appraisal was completed. Mr. Autry Ferrell signed as supervisor, and Mr. Shirey signed as reviewer. The Appraisal expressed some dissatisfaction with Mr. Simmons' attitude, although it rated his performance as meeting or exceeding job requirements as to all specifically rated items. Item No. 1 in the Appraisal stated that Mr. Simmons exceeded requirements for completing client training
data forms, which had been the specific complaint documented in the April 7, 1989, memorandum. The Appraisal made no mention of any problem with Mr.
Simmons' being late for work. Mr. Simmons' overall performance was listed as meeting job requirements. In his comments on the form, Mr. Simmons disagreed with the assessment concerning his attitude.
On August 28, 1989, Mr. Ferrell and Mr. Shirey signed a memorandum addressed to Mr. Simmons, which stated:
This is written to confirm that you received on this date an oral reprimand for failure to follow your established work schedule.
This is considered the first occurrence for this offense. Any further violation of similar Standards of Conduct may result in more severe disciplinary action.
Mr. Simmons refused to sign this memorandum, according to Mr. Shirey's note on the document. The Handbook provision referred to in the memorandum defines tardiness as "failure to follow established work schedules," and establishes a "standard" that the first occurrence will result in an oral reprimand; the second occurrence in a written reprimand; the third occurrence in a suspension of up to ten days, and the fourth occurrence in dismissal.
Mr. Simmons' attendance records indicate that during August, 1989, preceding this reprimand, he had been 30 minutes late for work four times and 15 minutes late one time. On each such occasion, Mr. Ferrell had approved leave with pay for the time he was tardy.
On Thursday, August 31, 1989, Mr. Simmons was ill. He did not telephone until 8:15 P.M. Mr. Shirey authorized sick leave with pay from 8:15 until 10:30, but did not approve leave with pay for the time before Mr. Simmons telephoned. This is the first instance of Mr. Simmons' not being allowed leave with pay for any absence or tardiness, even though Sunland Policy 60-2 clearly authorized leave without pay for previous occurrences.
On Friday, September 1, 1989, at approximately 1:00 A.M., Mr. Simmons took Mrs. Simmons to Tallahassee Regional Memorial Medical Center. She was in labor with the couple's third child. She was admitted through the emergency room at 4:10 A.M. the same night, and gave birth at 5:02 P.M. the following day. (still September 1st). The next day, September 2, 1989, Mrs. Simmons had routine surgery involving an incision through the abdomen. She and the new baby were discharged from the hospital on Monday, September 3, 1989.
Mr. Simmons did not report to work on September 1 through 4, 1989. He was caring for his other two children, ages 5 years and 10 months. They had day care arrangements during normal business hours when Mrs. Simmons worked, but no such arrangements were available to Mr. Simmons to his knowledge in the evening hours when he was to work at Sunland. His care of the children was necessary since Mrs. Simmons was not physically capable of caring for their children due to her operation.
On Friday, September 1st, Mr. Simmons telephone Sunland and eventually spoke to Mr. Shirey. He told Mr. Shirey that his wife was in the hospital giving birth and that he had no one to care for his children at night. Mr. Shirey demanded that he come to work, and Mr. Simmons said he would come to work the next day if he possibly could. Mr. Shirey testified that Mr. Simmons stated
unequivocally that he would report for work the next day, a statement Mr. Simmons denies.
Mr. Simmons did not telephone Sunland on September 2nd through 4th. He testified that he had no money to use at a pay phone to make the long-
distance call (he had missed payday during his absence) and lost his only change on one unsuccessful attempt to call. His last payday had been August 17th.
Mr. Shirey testified that he attempted to reach Mr. Simmons on Monday, September 3, 1989 (Labor Day holiday), using two telephone numbers in Mr. Simmons' personnel file. Mr. Simmons had moved from Chipley to Tallahassee and had no telephone, so these efforts were unsuccessful. Respondent was aware that Mr. Simmons had moved to Tallahassee. However, since Mr. Simmons did not have telephone service during this time, his supervisors had no ready means to contract Mr. Simmons. No one from Mr. Simmons employment thought to check or contact him at either of the two Tallahassee hospitals.
Tuesday, September 5th and Wednesday, September 6th, were Mr. Simmons' usual days off. On Thursday, September 7, 1989, he reported to work at Sunland. When summoned by Mr. Shirey, he showed Mr. Shirey a handwritten, signed note from Mrs. Simmons' attending physician, stating that Mrs. Simmons had delivered a baby and had surgery, and asking that Mr. Simmons be excused from work September 1st through 4th. Neither the original nor a copy of this note was placed in Mr. Simmons' file, although both Mr. Shirey and Mr. Parramore acknowledged during their testimony that Mr. Simmons had showed it to them on September 7th. Mr. Simmons was informed that he was being terminated.
On Tuesday, September 5th, prior to Mr. Simmons' return on the 7th, Mr. Parramore had already prepared a memorandum recommending that Mr. Simmons be terminated for abandonment of position. The memorandum referred to the earlier reprimand for tardiness and to Mr. Simmons' late call-in on August 31st, when he was sick. The memorandum, also referenced Mr. Simmons' reasons for his absence on September 1, 1989. The memorandum stated that Mr. Shirey had informed Mr. Simmons that he needed to obtain medical certification of his wife's illness and the need for his presence, and that Mr. Shirey had informed Mr. Simmons that "he needed to get to work as soon as possible." Notably, it does not mention any absolute commitment by Mr. Simmons, during his phone conversation with Mr. Shirey, to report the next day. Even with all these facts listed in the memorandum, it was clear from the evidence that the main reasons for Mr. Simmons' employer's action was the fact that Mr. Simmons could not be located, that he did not call in on the 2d, 3rd, or the 4th and that Mr. Simmons was not believed to be telling the truth regarding the reasons for this absence and the reason no one called in.
On September 7, 1989, a letter was mailed to Mr. Simmons confirming what he had been told verbally that day: that he was terminated for abandonment of position.
The evidence demonstrates that Mr. Simmons did not intend to abandon or resign from his position at Sunland, when he was absent from work on September 2 through 4, 1989. He obtained a written medical certification and excuse, complying with Mr. Shirey's instructions as he understood them. He reported to work promptly on his next regular work day. Though he may not have been as diligent as he could have been in contacting his superiors, he had sufficient reason in his own mind to be absent from work, and the evidence shows he fully intended at all times to return to work.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
Rule 22A-7.010(2) Abandonment of Position (a), Florida Administrative Code, states as follows:
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. ...
The suspension or dismissal of a career service employee requires ten days' advance notice, and is subject to appeal to the Public Employees Relations Commission, Florida Statutes. Section 110.227. An employee's voluntary resignation is an exception to these requirements, as an employee has no right to appeal his or her own voluntary act. By rule, a presumption has been created that an employee who is absent without leave for three consecutive workdays "shall be deemed to have abandoned the position and to have resigned from the Career Service." Rule 22A-7.010(2), Florida Administrative Code. This rule is an agency-made an exception to the requirement for a PERC hearing, and has thus been construed as creating an "implied presumption" of voluntary resignation. Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st D.C.A. 1978).
On the evidence presented, Mr. Simmons did not intend to abandon or voluntarily resign from his position. Therefore, the conclusion follows that the proposed agency action to terminate his employment, represented by the letter of September 7, 1989, is not warranted.
That the Division enter a Final Order finding that Petitioner did not abandon his position and that Petitioner be restored to his position as a Human Services Worker I at the Marianna Sunland facility.
DONE and ORDERED this 5th day of September, 1990, in Tallahassee, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1990.
APPENDIX TO CASE NO. 89-5623
John L. Pearce, Esquire Department of Health and
Augustus D. Aikens, Jr., Esquire Department of Administration
H. Michael Madsen, Esquire Messer Vickers, Caparello,
French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32399-2949
