Findings Of Fact William H. Mathias was initially employed by SWFWMD as Director of Employee Relations on January 30, 1980, at pay grade At the time of Petitioner's employment William C. Tatum was Executive Director of SWFWMD. Petitioner has over ten years' experience in personnel relations and security and holds two master's degrees. Due partly to Petitioner's aggressiveness and strong personality, he began exerting influence in the personnel division in pushing the Personnel Department in directions not necessarily approved by Tatum. Tatum wanted to reduce the influence the Personnel Department was having on SWFWMD. On July 26, 1982, Petitioner was transferred to the Field Operations Division with no change in grade. Exhibit 5, which announced this transfer, stated Petitioner was transferred as Assistant Director. On July 28, 1982, a subsequent memorandum, Exhibit 6, was issued by Tatum changing Petitioner's title from Assistant Director to Acting Administrative Assistant. Prior to this transfer Tatum spoke with William F. Sietman, Director of Field Operations, who advised Tatum that he had no need for Petitioner in the Field Operations Division however, Tatum insisted that Petitioner, with his two master's degrees, could make a valuable contribution to SWFWMD if placed in the right niche. Shortly thereafter, Tatum was replaced as Executive Director by Gary W. Kuhl, who was promoted to that position from Assistant Executive Director. The first evaluation report submitted by Sietman on Petitioner, at the end of his first six months on the job, was unsatisfactory. Petitioner appealed to Kuhl, who withdrew his evaluation partly because no job description had been prepared for the position occupied by Petitioner. Kuhl directed the preparation of a job description for the work to be done by Petitioner. When the job description_ was prepared, the position was given the title of Program Management Analyst and the duties to be performed are as contained in Exhibit 1. Principally, Petitioner's function was to do some coordinating of the budgets prepared by the various sections in Field Operations, coordinate planning and negotiate and oversee the building maintenance contract. This position was a staff function as opposed to a line function in which the incumbent would exercise direction, or command, over the section heads. As a staff function his duties were coordination as opposed to direction. Subsequent to his initial unsatisfactory evaluation at the end of his six months probationary period, Petitioner's evaluations improved each evaluating period and at the time of his termination his performance can be described as very good. However, on several occasions complaints about Petitioner giving personnel advice to Respondent's employees regarding overtime, job classifications, and pay grades reached Kuhl. This was the subject of a memorandum addressed to Petitioner and Sietman by Kuhl on May 15, 1984 (Exhibit 7). Petitioner was told to leave personnel matters and advice to the Personnel Department or face disciplinary action. Changes in the functions imposed on Respondent in 1984 necessitated the employment of additional technical people and the establishment of additional technical positions at SWFWMD. The Governing Board indicated to the Executive Director that the budget could not be raised by the amount needed to fund all of these positions and that cuts would have to be made. Kuhl met with the various division heads to require more justification for the proposed new positions and to ascertain which existing positions they could eliminate. This resulted in a proposed list of positions including the librarian, Petitioner's position, and other positions currently unoccupied. As a result of these discussions it was concluded the unfilled positions and the position of Program Management Analyst could be eliminated. By memorandum dated August 17, 1984 (Exhibit 4), Kuhl advised the Governing Board of the proposed reduction in work force. By letter dated August 20, 1984 (Exhibit 15), Kuhl advised Petitioner that the position of Program Management Analyst was eliminated effective immediately and that he was eligible to apply for any other position in SWFWMD for which he was qualified. Petitioner appealed the termination to the Governing Board and, when the Board affirmed his termination, he filed the instant petition. Prior to the transfer of Petitioner to the Field Operations Division, the budget was prepared by each section chief for his section, and the division director coordinated the budgets. While Petitioner was assigned to Field Operations, he performed this budget coordination role previously taken by the director. When Petitioner's position was eliminated, the division reverted to the way it operated before Petitioner's arrival, with little, if any, noticeable effect. The role Petitioner had assumed in supervising the maintenance contract also reverted back to where it was before Petitioner's arrival, again with no noticeable effect.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: The Career Service Commission find that there was no just cause for the written reprimand concerning the charge of "leaving the assigned work station without authorization," and expunge said written reprimand from respondent's personnel file; and The Commission affirm the thirty day suspension without pay for insubordination and committing this offense while supervising children. Respectfully submitted and entered this 15th day of April, 1977, in Tallahassee, Florida. COPIES FURNISHED: William Park, Esquire 4000 West Buffalo Avenue Tampa, Florida 33614 Freemon A. Mark, Esquire 1577 North Dixie Highway Post Office Box 1991 Pompano Beach, Florida 33061 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 Mr. Conley M. Kennison State Personnel Director Room 530, Carlton Building Tallahassee, Florida 32304 DIANE D. TREMOR 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 15th day of April, 1977. =================================================================
The Issue The issues in this case are whether Petitioner provided reasonable notice to Respondent of its intent to suspend without pay and terminate Respondent's employment, and whether Respondent could unilaterally resign to retire while the Superintendent's pending recommendation to terminate Respondent was before Petitioner.
Findings Of Fact Petitioner, the Sarasota County School Board, employed Respondent as a teacher and principal of Garden Elementary School in Venice, Florida, for 29 years. Respondent was employed under an annual contract throughout each year of employment, the last of which began July 1, 2002, scheduled to end June 30, 2003. In February 2002, Respondent was arrested and charged with seven counts of Sexual Battery by a Person over Eighteen (18) Years of Age upon a Child Eleven (11) Years or Younger. On March 5, 2002, Respondent was suspended with pay by Petitioner. While suspended with pay, Respondent's annual contract expired on June 30, 2002, and was renewed by Petitioner for the 2002-2003 school year. Respondent remained suspended with pay and did not perform any services for Petitioner during the 2002-2003 school year. On or about April 28, 2003, Respondent completed, but did not file, an application to retire from the Florida State Retirement System and executed a Durable Family Power of Attorney to his wife, Mrs. Cook. The power of attorney empowered Mrs. Cook to make decisions on behalf of Respondent for all personal, legal, and financial matters. On May 2, 2003, Respondent was found guilty of two counts of Sexual Battery by a Person over Eighteen (18) Years of Age upon a Child Eleven (11) Years or Younger by a jury in the Circuit Court for the Twelfth Judicial Circuit, in and for Sarasota County, Florida. Respondent was immediately taken into custody and placed in the Sarasota County Jail. Three days later, on May 5, 2003, notwithstanding Respondent's incarceration in the Sarasota County Jail, Superintendent Hamilton misdirected a certified letter to Respondent's home address, attempting to advise him of her intent to recommend to Petitioner on the following day, May 6, 2003, that Respondent be suspended without pay. Hamilton's letter further sought to notify Respondent that she intended to recommend that he be terminated from his employment at the School Board meeting scheduled for May 20, 2003, due to his recent conviction. pay. On May 6, 2003, Petitioner suspended Respondent without On the following day, May 7, 2003, Mrs. Cook received Superintendent Hamilton's certified letter dated May 5, 2003, but did not open it nor become fully aware of its contents until a later time. Respondent was and remains incarcerated. There is no evidence that he ever received actual notice of the Superintendent's certified letter of May 5, 2003. In addition to the untimely and misdirected notice, the Superintendent's certified letter failed to advise Respondent that he could contest the proposed suspension without pay. Respondent's wife credibly testified that if she had received notice of Petitioner's intent prior to the School Board's meeting of May 6, 2003, she would have attended the meeting and attempted to submit Respondent's resignation. On May 7, 2003, Petitioner mailed a follow-up letter to Respondent's home address, via standard U.S. mail, attempting to notify him that the Board had suspended him without pay. Respondent remained incarcerated and did not receive this letter. It is unknown whether Mrs. Cook ever received the letter or when she became aware of its contents. On May 9, 2003, Mrs. Cook invoked her power of attorney on behalf of Respondent and submitted his resignation from employment to Petitioner, effective immediately, in order to retire. On that day, Mrs. Cook attempted to hand-deliver Respondent's retirement/resignation letter to Petitioner's personnel office, along with Respondent's previously executed retirement papers, however, the personnel office staff refused to accept the paperwork. Instead, Mrs. Cook was immediately directed to speak with Allen Wilson, Executive Director of Human Resources and Labor Relations for Petitioner, but he was unavailable. Later that same day, Mrs. Cook met with Mr. John Zoretich, Petitioner's Director of Instruction/Curriculum. Mr. Zoretich agreed to receive Respondent's letter of resignation/retirement from Mrs. Cook, but instructed her to deliver Respondent's executed retirement papers to the payroll department. Mrs. Cook complied, but again, payroll staff refused to accept the retirement papers and instructed her to contact Mr. Wilson. Mrs. Cook's repeated efforts to communicate with Mr. Wilson were unsuccessful. Petitioner's personnel and payroll departments refused to accept Respondent's executed retirement papers due to Petitioner's pending consideration of Superintendent Hamilton's termination recommendation. The parties agree that the amount of terminal pay at issue, based upon Respondent's effective daily rate of pay, is approximately $60,000.00. On May 12, 2003, Mrs. Cook forwarded Respondent's previously executed retirement application by facsimile and U.S. Mail to the Florida Retirement System. The Florida Retirement System acknowledged its receipt in correspondence dated June 18, 2003, indicating a date of receipt of May 13, 2003, an employment termination date of May 3, 2003, and a retirement date of June 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter an order finding: Respondent has materially violated the terms of his employment contract. Petitioner has just cause to terminate Respondent's employment. Respondent's offer to resign has not been accepted by Petitioner and is ineffective until accepted or denied by Petitioner. Respondent is not entitled to terminal pay. Petitioner failed to provide Respondent with reasonable notice of its intent to consider the Superintendent's suspension recommendation at the public meeting, and Respondent was deprived his substantive right to contest the recommendation and the Board's determination. Respondent is entitled to remain on paid suspension from May 6, 2003, the date of the effective suspension, through May 20, 2003, the date of Petitioner's properly noticed public meeting to terminate him. DONE AND ENTERED this 7th day of January, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2004.
Findings Of Fact 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.
Recommendation It is accordingly, RECOMMENDED: 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. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1990. APPENDIX TO CASE NO. 89-5623 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 28 of Petitioner Findings of Fact are adopted in substance, insofar as material The facts contained in paragraphs 27 and 29 of Petitioner Proposed Findings of Fact are subordinate. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32399-0700 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 H. Michael Madsen, Esquire Messer Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32399-2949 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concern whether the Petitioner, Gregory B. Taylor, violated the attendance policy of the St. Johns River Water Management District, the Respondent (District) thereby subjecting himself to a one day suspension.
Findings Of Fact The Petitioner was employed by the District as a customer service technician II. He has worked for the District for seven years and is assigned to the Division of CIS. He is supervised by Robert Green, and Robert Green's supervisor, the Division Director, Martin Barnes. The District has policies that govern work place conduct including attendance and leave. The District routinely informs employees of these policies that govern their workplace conduct through orientation meetings and discussions with supervisors. The policies are posted on the District's internet website and the Petitioner is aware of where to find these policies, by his own admission. The attendance policy provides that employees must be present on their job for the scheduled hours and the established workday and workweek unless absence from duty has been approved by the appropriate supervisor. Mr. Green testified that he has reviewed the District's attendance policies with the Petitioner. Concerning annual leave, the attendance policy provides that "except in emergencies, annual leave must have supervisory approval before being taken." District policy as to sick leave provides that sick leave shall only be used with prior supervisory approval. The District classifies absences as either planned or unplanned. Planned absences are those that are approved in advance, and unplanned are those for which prior approval has not been obtained. Each District work unit, including CIS, establishes practices to implement the means of obtaining prior approval for planned absences and reporting of unplanned absences. The policy for CIS employees for reporting unplanned absences is to contact the supervisor. If the employee cannot contact that supervisor then the employee is to contact the Division Director, Assistant Department Director, or Department Director, in that order of priority. Each District work unit may impose specific requirements with regard to the reporting of unplanned absences for the purposes of correcting behavior. The District written attendance policy provides that: If a department/office director determines that an employee is excessively absent based on a pattern of absences, such as regular absence on the day proceeding or following the employee's regular days off; . . . [or] continual use of sick leave as it is accrued . . .; the department/office director may take action to control such excessive absences. Such action may be taken only after the absences have been discussed with the employee and the plan to control the absences has been reviewed by the office of human resources. In December 2004, after several discussions and meetings with the Petitioner and after consulting with the District's office of Human Resources, Robert Green gave the Petitioner a memorandum regarding his attendance. The memorandum restated the attendance policy and, in order to control the Petitioner's excessive absences and failure to contact his supervisors regarding unplanned absences, the memorandum instructed the Petitioner to notify Mr. Green, or if Mr. Green was not available, the three other staff members at progressively higher supervisory levels, mentioned above. The memorandum explicitly instructed the Petitioner to contact the supervisors by phone. A little more than a month later, at the end of January 2005, Mr. Green conducted the Petitioner's annual performance evaluation. The "additional comments" section of that evaluation, before the space for the supervisor's and employee's signatures includes the following statement: hroughout this evaluation period I have counseled [Petitioner] on his tardiness during his scheduled working hours. Mr. Green testified that, in addition to the statement above, he counseled the Petitioner during the evaluation regarding the Petitioner's tardiness and failure to notify his supervisors when he was out and reiterated that the notification was to be made by phone. In February 2005, less than two weeks after the evaluation, and after additional unplanned absences and tardiness following the December 2004 memorandum, Mr. Green provided the Petitioner with a memorandum related to the Petitioner's tardiness and unplanned absences. This memorandum noted that an excessive number of unplanned absences and tardiness had become apparent and set forth 22 unplanned absences--the majority of which immediately preceded or followed regular scheduled days off. In addition, the memorandum reiterated that the Petitioner's habitual tardiness was unacceptable and provided examples. The memo concluded with the following paragraph, which re-stated the plan to control the Petitioner's excessive absences: You are expected to adhere to your regular work schedule. If you cannot, effective February 14th, at the beginning of your workday, you will notify me or Martin Barnes, Division Director of Computer Information Systems by phone when you will be absent or more than seven minutes late to work. Voice mail or e-mail is not an appropriate notification. Continued tardiness and unplanned absences will lead to disciplinary action. The Petitioner testified that he received the instruction, both in writing and orally, to call Mr. Green or Mr. Barnes. On November 4 and 7, 2005, a Friday and a Monday, the Petitioner was sick. On both days he failed to contact either Mr. Green or Mr. Barnes by phone. The Petitioner testified that upon his return to work, Mr. Green told him that he, Green, "appreciated" the fact that the Petitioner called the help desk when he was sick, and the Petitioner asserts that meant that Mr. Green approved of calling the help desk rather than Mr. Green. Mr. Green testified that he did say that he appreciated that the Petitioner had at least called in and then added that he made that statement after he stated that it was inappropriate to call someone other than him, and before telling the Petitioner (again) that notification should be made to Mr. Green directly. Mr. Green never communicated to the Petitioner, in a memo or otherwise, that the requirement that the Petitioner called his supervisors to report or request unplanned absences no longer applied to the Petitioner. Mr. Green established that the requirement that the Petitioner call in is consistently interpreted and applied throughout the CIS management. The Petitioner testified that he called in sick on November 4 and November 7 at 7:00 a.m. so that he could immediately return to resting. There was no testimony that the Petitioner called in later on either day and Mr. Green testified that neither he nor any other supervisor was contacted by the Petitioner. The Petitioner testified that he had, previous to November 4, 2005, attempted to call Mr. Green early in the morning and had been unsuccessful, implying that he did not call either Mr. Green or Mr. Barnes because they are not available by phone at 7:00 a.m. in the morning. Mr. Green attempted to call the Petitioner back when the Petitioner had been unable to reach him by phone in the early morning hours. Mr. Green is required to always have his cell phone on. He told the Petitioner that he was available by cell phone. Martin Barnes, Mr. Green's supervisor, confirmed that he requires Mr. Green to keep his cell phone on and with him at all times. At 7:00 a.m. Mr. Green is on his way to work and available at that time. The Petitioner admitted that he had never called Mr. Barnes's cell phone. Mr. Barnes testified that his office phone is forwarded to his cell phone so that he is available almost 24 hours a day. The Petitioner's normal work day concludes at 4:00 p.m. On November 22, 2005, the Petitioner sent an e-mail to a group of recipients, "IR Management," that included Martin Barnes, the CIS Division Director, and Kevin Brown, Mr. Barnes supervisor, requesting authorization to leave work early. The Petitioner made his request at 2:17 p.m. and left work at 3:15 p.m. In between the time that the Petitioner made his request and the time he left, the Petitioner was away from his desk and unavailable by e-mail. Robert Green was not working at the District that day. Accordingly, the next person to whom the Petitioner was directed to seek approval for leave was Martin Barnes. Shortly after the Petitioner sent the e-mail, Kevin Brown replied by e-mail. Rather than grant permission, the body of the message stated: "Please address this with Martin." Mr. Brown's instruction to contact Mr. Barnes was given even though the e-mail Brown received was also clearly addressed to other members of "IR Management," including Mr. Barnes. The Petitioner did not call Mr. Barnes by phone. Rather, the Petitioner stated, "I knew in my mind that I had already contacted Martin Barnes concerning this and that I had not been notified by anyone in management saying this would be unacceptable." The Petitioner's unilateral use of a negative notice procedure directly conflicts with specific instruction he received to contact supervisors by phone. It also is not in compliance with the instruction, provided after the Petitioner had already e-mailed Mr. Barnes, that he address leaving work early with Mr. Barnes. Although the Petitioner referred to other e-mails that purportedly evidenced use of this procedure by the Petitioner and other employees, he failed to produce any such e-mails or any corroborating evidence. The testimony of Ms. Hudson and Mr. Green was that phoning was the only acceptable method of communicating for the Petitioner. Further, the phone requirement was the result of a plan to control the Petitioner's tardiness and excessive absences, not directed toward the issue of other employees' attendance. The District's disciplinary action policy describes "absence without authorized leave" as: Failure to obtain prior approval for absence from work, except in the case of an emergency; failure to notify the proper supervisor in a timely or appropriate manner of intended absence from work; or obtaining leave based on a misrepresentation. On December 8, 2005, the Petitioner was provided with a letter from the District's executive director that informed him that the District intended to suspend him for one day without pay for being absent without leave. The letter, dated December 7, 2005, indicated that the intended suspension was based on the District's findings that: (1) the Petitioner failed to properly report his absence from work on two consecutive work days (November 4 and November 7) and that (2) the Petitioner failed to properly secure authorization to leave work early (on November 22). The District's director of human resources established that either of these two bases would serve independently as a basis for the disciplinary action taken. The Petitioner was notified in the letter that he could request a pre-determination conference for the purpose of presenting information to the executive office that would support a decision not to suspend the Petitioner, before a final decision was made regarding the intended disciplinary action. The Petitioner did not request a pre-determination conference. On December 27, 2005, the Petitioner was provided with the second letter from the District's executive director informing the Petitioner that, given the facts recited in the December 7, letter and given that the Petitioner had not taken the opportunity to be heard as to those facts, that he would be suspended for one day. That letter also stated that the Petitioner had the right to appeal the executive director's decision through the administrative hearing process pursuant to Chapter 120, Florida Statutes. Under the District's disciplinary action policy, the failure to properly notify the appropriate supervisor of an intended absence, in this case either because the employee is sick or seeks approval for leaving his work station early, constitutes an absence without authorized leave. The appropriate discipline level for being absent without leave ranges from reprimand to dismissal. The District has terminated employees for repeated occurrences of absence without leave. The District tends to take the least severe disciplinary action needed to correct behavior. However, when an employee's behavior does not respond, the severity of the discipline is progressively increased. Under District practice, violations of District policies are considered cumulative. All previous disciplinary actions, whether for the same or a different violation, are considered in determining which disciplinary action to impose. The Petitioner has a previous reprimand in his personnel file for insubordination. The Petitioner has also been counseled by memo, evaluation, and meetings before November 2005, regarding his lack of adherence to District attendance policy. Both the history of counseling and informal corrective action for the particular behavior, absence without authorized leave, and the previous formal reprimand for an unrelated violation were considered in determining the appropriate level of disciplinary action in the case at bar. When asked what remedy he sought the Petitioner at the hearing stated: "I only ask that the disciplinary action be removed from my personnel file." The Petitioner did not identify an applicable exemption from Florida's broad public records laws or document retention schedules that would support the removal of an agency's final action from the agency's files.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the St. Johns River Water Management District enter a final order suspending the Petitioner from work for one day without pay. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2006. COPIES FURNISHED: Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177-2529 Gregory B. Taylor Post Office Box 1514 Palatka, Florida 32178-1514 William Abrams, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177-2529
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the petition for relief, and denying the relief requested therein. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
Findings Of Fact The following quoted provisions of the joint stipulations of fact entered into by the parties, as attached to this recommended order, constitutes the underlying evidential facts to be considered by the undersigned in deliberating the charges in this case. The exhibits mentioned in the quoted provision may be found as a part of the attached joint stipulations of fact and exhibits, which have been made a part of the record herein. The quotation is as follows: JOINT STIPULATIONS OF FACT The charge herein attached as cumulative exhibit #1 was filed by the Charging party on October 21, 1976 and a copy was simultaneously served on Respondent. Pursuant to Florida Administrative Rule 8H-4.03 a copy of the charge is hereby attached. The trial and presentment of the above-captioned cause was assigned to Rodney W. Smith, attorney for the Charging Party on or about February 25, 1977. Respondent is a public employer within the meaning of F.S. 447.203(2) and has its principal place of business in the City of Jacksonville, Duval County, Florida where it is engaged in the business of operating a consolidated municipal government. Respondent is created directly by the legislature of the State of Florida so as to constitute a consolidated government administered by individuals who are responsible to public officials and/or the general electorate. Charging Party is now and has been at all times material herein an employee organization within the meaning of 447.203(l0) of the Act. On March 4, 1976 Respondent filed a PETITION FOR CERTIORARI with the opinion that said petition would stay the "proposed CERTIFICATION ORDER by the Public Employees Relations Commission until final determination of the case was resolved. On or about May 18, 1976 the Public Employees Relations Commission issued a CERTIFICATION ORDER certifying the Charging Party as the exclusive bargaining representative for the Public Employees in the following unit: INCLUDED: Firefighters Lieutenants Captains Employed by the City of Jacksonville Fire Department EXCLUDED: All officers above the rank of captain employed by the City of Jacksonville Fire Department and all other employees of the City of Jacksonville On or about June, 1976 the Respondent filed an APPEAL of the above- stated certification order by PETITION FOR REVIEW in the First District Court of Appeal in and for the State of Florida. At no time was a stay of the certification order sought or obtained by the Respondent. Although the CERTIFICATION ORDER was challenged by PETITION FOR REVIEW, the Charging Party has been the certified representative for purposes of collective-bargaining of all public employees in the unit described in the above paragraph since May 18, 1976. It has been the continuous policy, and most recently by special ordinance, for the City of Jacksonville to extend dues- deductions to firefighters, lieutenants and captains authorizing such deductions since on or about 1969. This policy of extending dues-deductions to captains, lieutenants and firefighters has continued at all times until October 15, 1976. On October 15, 1976 the biweekly paychecks of the captains (sic) and lieutenants employed by the, Respondent did not reflect the usual dues- deduction. The Charging Party was notified of the City's intention to discontinue dues-deductions for the employees "in the ranks of lieutenants and captains during contract negotiations in late September, 1976. On or about October 18, 1976 agents for the City, including Dave Thompson, Administrative Aide for the Public Safety Department and John Waters, Director of Department of Public Safety informed Robert Carver, President of the Charging Party, that the Respondent would not extend dues-deductions to the captains or lieutenants since the Respondent did not feel these positions were properly included in the certified bargaining unit. The action of the Respondent in discontinuing the dues-deductions on October 15, 1976 was resultant from the attached cumulative exhibit B, Memorandum of September 24, 1976 from John M. Waters to Jack Parker, City Accountant for the City of Jacksonville, which directs that positions above the rank of firefighter are to no longer receive dues-deductions. The Director of Employee Relations and chief negotiator for the Respondent, William Davis, was officially notified of the proposed discontinuation on September 29, 1976 by action of the attached cumulative exhibit c." The act complained of by the Charging Party, is the act of the Respondent in discontinuing the dues-deductions for the ranks of lieutenant and captain effective October 15, 1976. (The facts that led up to that action are established in the stipulations of fact entered into by the parties.) In the mind of the Charging Party the discontinuation of the dues-deductions on October 15, 1976, constituted: (1) an interference with the rights of employees as described in 447.501(1)(a), F.S.; (2) a unilateral change during the bargaining process in violation of 447.50l(1)(c), F.S.; and (3) a specific refusal to comply with the provisions of 447.303, F.S. The Respondent disputes and joins issue with that claim. To resolve the conflict, the case is best discussed by dividing the consideration into two broad categories. The first category is concerned with the question of whether the Respondent's initial petition for writ of certiorari filed with the First District Court of Appeal, State of Florida, on March 4, 1976, and/or the Respondent's appeal of the Public Employees Relations Commission's certification order, which was filed with the First District Court of Appeal, State of Florida; imposed an automatic stay of the effect of the proposed certification order by the Public Employees Relations Commission, and/or a stay of the certification order of May 18, 1976, entered by the Public Employees Relations Commission. Any stay of the proposed certification order and subsequent certification order by the Public Employees Relations Commission must have been effectuated by the filing of the initial petition for writ of certiorari on March 4, 1976, and the appeal of June, 1976, because the facts establish that no specific request was ever made of the First District Court of Appeal or the Public Employees Relations Commission to grant a stay. To that end, the Respondent contends that it could justifiably rely on the Florida Appellate Rule to grant an automatic stay in both the initial petition for writ of certiorari of March 4, 1976, and the appeal of June, 1976 Pertinent provisions of Rule 5.12 state: "Rule 5.12 Supersedeas Bond not Required of the State and its Political Subdivisions and their Boards, Commissions, etc.; Security when Required When Security Not Required. When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execu tion or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court. Court May Require Bond. The court may, on motion for good cause shown, require a super sedeas bond or other security, in such amount, form and manner as it may prescribe as a condition for the further prosecution of the appeal or certiorari." On the face of the language of Florida Appellate Rule 5.12, it would appear that the Respondent is correct in its assumption of having an automatic stay; however, there is a subsequent appellate decision which defeats the Respondent's right to rely on the theory it offers as standing for the proposition that an automatic stay is granted. That case is Panama City v. Florida Public Employees Relations Commission, 333 So.2d 470, (1st DCA 1976, Fla.). The decision in this case was initially rendered on May 5, 1976, and a rehearing denied on June 29, 1976. The effective date of the decision is July 14, 1976. The Panama City case, supra, concerns the determination by the Public Employees Relations Commission of an appropriate bargaining unit and direction of an election. Those actions by PERC were not found to be final orders and in discussing the position of that Petitioner requesting a writ of certiorari, the Court stated that a stay of the effect of the enforcement of the agency action does not transpire merely by filing the petition for writ of certiorari. Under the ruling, in the decision, the stay may be granted by the agency or by the Court upon appropriate terms and in keeping with the authority of 120.68(3), F.S. That section of Chapter 120 indicated the following: "(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, but, in any event, the order shall specify the conditions upon which the stay or supersedeas is granted." Moreover, in the opinion of the Court in the Panama City case, under Florida Appellate Rule 5.5, the Petitioner for writ of certiorari shall apply to the agency for supersedeas to forestall the terms of the agency action. Through its memorandum the Respondent in this cause has concluded that there is a distinction in the facts of the Panama City case and the facts sub judice, in that the Panama City case dealt with determination of an appropriate bargaining unit and direction of an election which were interlocutory matters, whereas the question here deals with a certification order which is final agency action on the part of the Public Employes Relations Commission. As an adjunct to this argument, Respondent indicated that it is the June, 1976, appeal taken by the Respondent, challenging the Public Employees Relations Commission order of certification, that becomes the focal point of the inquiry upon the subject of an automatic stay. This latter phase of the argument is accepted and it is the June, 1976, appeal that should be addressed. With that fact in mind, the language of the Court's opinion in the Panama City case on a petition for rehearing clarifies any distinction which might be drawn between the right to stay in an interlocutory situation, and the right to a stay of final action by an agency. The Court, in its discussion on rehearing, stated that the PERC order certifying an employee organization's exclusive collective bargaining representative of employees is a final order, which is subject to judicial review, together with all prior interlocutory orders. The Court goes on to say that if PERC refuses to stay any bargaining pending the Court review, the Court would have authority to grant that relief, in A order to make the Court's jurisdiction effective. For this proposition it cites to Article V, Section (4)(b) 3, Florida Constitution. A close analysis of the Court's statement on the rehearing in the Panama City case, supra, points out that the party who takes an appeal of the final order of certification by the Public Employees Relations Commission should look to the Public Employees Relations Commission to grant a stay prior to turning to the Court for such relief. This is in keeping with the requirements of 120.68(3), F.S. It can be seen by an examination of the facts stipulated to in this cause that the Respondent has failed at any point to request of the Public Employees Relations Commission that the effect of the order of certification be stayed pending the outcome of the consideration of the appeal on its merits. Consequently, in keeping with the decision of the Panama-City case, supra, the effect of the certification order is not stayed and any action which the Respondent took in derrogation of the decision of the First District Court of Appeal in Panama City, supra, subsequent to July 14, 1976, the date the decision became binding, may constitute an unfair labor practice. See also, Duval Cty School Bd v. Fla. Pub. Emp. etc., 346 So.2d 1086 (1st DCA 1977, Fla.) Having determined that the effect of the certification order of the Public Employees Relations Commission has not been stayed, consideration of the effect of the Respondent's action which discontinued the dues-deduction after October 15, 1976 for those ranks of lieutenant and captain can be made. It is clear from the facts In the record that it had been the practice of the employer to authorize the dues-deduction for lieutenants and captains since 1969 and there is no showing that the employees in those ranks who requested the dues- deduction ever asked that the deductions be discontinued. The conclusion on the part of the Respondent that the dues-deduction should be discontinued was a unilateral action, premised upon Respondent's individual evaluation of the propriety of including lieutenants and captains in a unit with firefighters. In view of the history of the dues-deduction process for lieutenants and captains in the City of Jacksonville, and the outstanding unit certification by PERC which includes such employees, it is concluded that deductions should have been continued beyond October 15, 1976. This is authorized under the opinion of United Faculty of Palm Beach Jr. College, Case No. 8H-CA- 754-1158. The failure to continue this deduction program beyond October 15, 1976 constituted an action by the Respondent in regard to conditions of employment and was per se a violation of the duty to collectively bargain. See 447.309(1), F.S., and NLRB v. Katz, 396 U.S.736 (1962). This responsibility on the part of Respondent to continue the dues-deduction has now been specifically established in 447.303, F.S., as amended at 77-343, Laws of Florida which reads: "Any employee organization which has been certified as a bargaining agent shall have the right to, upon request, have its dues and uniform assessments deducted and collected by the employer from the salary of those employees who authorized the deductions, set dues and uniform assessments In a related argument, the Respondent attempts to suggest that the Public Employees Relations Commission has unilaterally expanded and redefined the bargaining unit that had been previously agreed to between the City of Jacksonville and Local 1884 IAFF. Specifically, the Respondent claims that the City of Jacksonville and Local 1884 IAFF had agreed that only fire privates be included in the unit in 1973-1974 and 1974-1975, and that thereafter the Commission expanded and redefined the bargaining unit to include firemen and fire officers. Although this may be a fact, this fact is not in evidence through the stipulation of facts and in view of the limitations imposed by the agreement of the parties through their stipulation, the above-referenced information may not be utilized in reaching conclusions in this case. However, assuming arguendo the propriety of those facts, they would not seem to promote a different result in this cause. This conclusion is drawn from an examination of Clearwater Firefighters Association; Local 1158, IAFF and City of Clearwater, Case No. 8H- RC-766-1O68, 77E-377, reported at 3 FPER 177 (1977) and City of Titusville v. PERC, 3,30 So.2d 733 (1st DCA 1976, Fla.) Even though the Commission and the Court seemed to be stating that the Public Employees Relations Commission may not extend the unit which has voluntarily been recognized by the parties, or offered for recognition by the Petitioner for unit determination, these cases demonstrate that each case that occurs should be examined on an individual basis. Applying that process, it would be necessary to request the Public Employees Relations Commission to reconsider their position in the instant case on the question of the appropriateness of the inclusion of lieutenants and captains in the certified bargaining unit, and that decision could be subject to appeal to the appropriate appellate court. Because a determination has not been rendered on the merits of excluding lieutenants and captains from the certified bargaining unit, either by the Public Employees Relations Commission or an appellate court, the certification order remains in effect and all rights and entitlements for ,the unit employees remain in force and effect until amended by a Perc order. Consequently, the act of discontinuing the dues-deduction for lieutenants and captains in the bargaining unit after October 15, 1976, constituted a specific refusal to comply with the provision of 447.303, F.S.; an interference with the rights of employees in violation of 447.501(1)(a), and an unilateral change during the bargaining process, in violation of 447.501(1)(c) , F.S.
Recommendation It is recommended that the Respondent, City of Jacksonville, be required to reinstate the dues-deduction authorizations of those lieutenants and captains in the certified bargaining unit. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 Robert G. Brown, Esquire Assistant Counsel Office of General Counsel City Of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Leonard A. Carson, Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, FLORIDA Exhibit A STATE OF FLORIDA
The Issue The issue in the case is whether the Department of Labor and Employment Security (Department), in implementing a workforce reduction that resulted in layoffs and demotions for employees, should have adopted by rulemaking, policies related to compensation reductions that occurred during the workforce reduction.
Findings Of Fact In 1999, a funding shortfall at the Department of Labor and Employment Security resulted in implementation of a workforce reduction plan. Petitioners Altamese Thompson and Sue Ezell were employees of the Department with permanent status in the Career Service system and whose employment and compensation were substantially affected by the Department’s workforce reduction program. Petitioner Florida Public Employees Council 79, AFSCME, represented the employees on collective bargaining issues affected in the workforce reduction. AFSCME members’ employment and compensation were substantially affected by the Department’s workforce reduction program. The 1999 workforce reduction was not the Department’s first experience with employee layoffs. In previous reductions, Department policy, set forth in LES Manual 1101.1.1.1 (October 1, 1996) was to retain, at existing salaries, as many employees as funding permitted. The Department policy was not adopted as an administrative rule. When the Department began to consider the workforce reduction of mid-1999, the Department apparently decided to increase the number of retained employees by reducing the salaries of workers who accepted "voluntary" demotions in lieu of layoff. By issuance of a "Change Notice" to LES Manual 1101.1.1.1, dated May 14, 1999, the Department redefined voluntary demotion to include "demotions requested by associates in lieu of layoff during workforce reduction pursuant to Chapter 60K-17, F.A.C." The revision also set forth a formula by which the compensation paid to employees who accepted voluntary demotion in lieu of transfer would be reduced. The change in the Department policy was not adopted as an administrative rule. Chapter 60K-17, Florida Administrative Code, sets forth the rules applicable to reduction of Career Service employees through the layoff process. The rule essentially establishes what is generally identified as the "bumping" procedure utilized by state agencies when employee levels are reduced. Rule 60K-17.004(3)(j), Florida Administrative Code, states in part, "[w]ithin 7 calendar days after receiving the notice of layoff, the employee shall have the right to request a demotion or reassignment. " Rule 60K-17.004(3)(p), Florida Administrative Code, states that "[a]n employee who accepts a voluntary demotion in lieu of layoff and is subsequently promoted to a position in the same class in the same agency from which the employee is demoted in lieu of layoff, shall be promoted with permanent status." Chapter 60K-17, Florida Administrative Code, does not prohibit salary reductions implemented as part of a voluntary demotion. Rule 60K-4.007, Florida Administrative Code, governs "demotion appointments" in the career service system. The rule states that a "demotion appointment" includes assignment to a job class having a "lower maximum salary or having the same or higher maximum salary but a lower level of responsibility. Rule 60K-2.004, Florida Administrative Code, governs salary determinations upon appointment to employment. Rule 60K- 2.004(4), Florida Administrative Code, states, "[a]n employee who is given a demotion appointment in accordance with Chapter 60K-4, F.A.C., may be demoted with or without a reduction in base rate of pay. " Rule 60K-9.005, Florida Administrative Code, addresses a Career Service employee’s right to appeal employment actions to the Public Employees Relations Commission. Generally, an employee who has attained permanent status in the Career Service System can appeal employment actions to the Public Employees Relations Commission. However, Rule 60K-9.005(5)(c), Florida Administrative Code, states than "[a]n employee who receives a reduction in pay, a demotion, or a transfer shall waive all rights to appeal such action if the employee has signed a written statement that the action is voluntary." By certified letters dated May 24, 1999, Petitioners Thompson and Ezell were advised that "[d]ue to impending budget cuts" the Department was reducing the number of positions in the Department’s Division of Jobs and Benefits (where Petitioners Thompson and Ezell worked) and that "[r]egretfully, you will be adversely affected by this work force reduction on June 30, 1999, at the close of business." The May 24 letter included a form titled "STATEMENT OF CHOICE OF OPTIONS DUE TO LAYOFF SITUATION" which set forth available jobs and included an option allowing the employee to select a layoff rather than the job demotion. The form included a signature line that stated, "I understand that by selecting demotion as an option, I am requesting a voluntary demotion in lieu of layoff, and my pay upon such voluntary demotion will be subject to the newly revised Section 1101.1.1.1.9d of the LES Personnel Manual." The evidence fails to establish the content of Section 1101.1.1.1.9d of the revised LES Personnel Manual. The documents entered into evidence at the hearing are identified as 1101.1.1.1. There is no subsection 9d. Subsection (c)2.c. addresses pay upon voluntary demotion and states as follows: Associates requesting voluntary demotions must have their base rate of pay reduced by one-half (1/2) of the percentage/salary increase received upon promotion and/or reassignment. For example, if an associate received a 10 percent promotional increase, his/her base rate of pay must be reduced by 5 percent. Permanent career service associates who have not had a promotional increase will have their base rate reduced by 5 percent. The Division Director/Commission Chairman equivalent has authority to take final action provided, however, that any variations must be submitted to the Assistant Secretary of Administration for review prior to final action. This provision also applies to demotions to classes that are higher or lower than the classes held prior to promotion and/or reassignment. Ms. Thompson noted her preferences as to the available jobs positions and signed the form. Ms. Ezell noted her preferences as to the available jobs positions and signed the form, but wrote a notation on the form indicating her disagreement with the situation, in part stating, "I am not voluntarily requesting demotion. I have absolutely no other choice after 27 years. A pay reduction should not occur. " At hearing, both Ms. Thompson and Ms. Ezell suggested that being forced to accept a demotion and pay reduction in lieu of total layoff did not present an entirely voluntary choice. There is no evidence that the Department provided copies of the cited Personnel Manual revision directly to affected employees either before or after the May 24 letters were issued. There is no evidence that either Ms. Thompson or Ms. Ezell saw the revised Personnel Manual prior to signing the "STATEMENT OF CHOICE" forms. During the spring of 1999, the Division’s Director circulated a publication entitled "Friday Fax" to employees of the Department’s Division of Jobs and Benefits. The "Friday Fax" dated March 19, 1999 indicates that an employee demoted as part of the pending reduction in force would retain their current salary. This reflects the existing policy of the Department that had been applied in prior workforce reductions. There is no credible evidence that the Division Director was explicitly authorized to restate the Department policy in the March 19, 1999 Friday Fax. There is evidence that the Department executives were considering the possibility of salary reductions during the ongoing planning for the workforce reduction. By the following week, a new Division Director had been appointed. By April 2, 1999, publication of "Friday Fax" was suspended. A new publication "Just The Facts. . ." began to be issued by the Department’s Office of Communications and was circulated to agency personnel. On May 24, 1999, the same day that the workforce reduction letters were mailed to Petitioners Thompson and Ezell, an issue of "Just The Facts" was published which stated that demotions in lieu of layoff would incur salary reductions, and referenced the revised LES Personnel Manual section as "1101.1.1.1 9.d.(1)(6)(c)2.c."
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent, Russell Spencer, willfully abandoned his employment with Petitioner, South Florida Water Management District, by unauthorized absence and failure to call-in or report to work for a three day period, without extenuating circumstances.
Findings Of Fact Respondent was employed by the District as a title examiner in its Real Estate Division. Respondent felt aggrieved and dissatisfied with his employment as a result of the denial of two promotions, which he believed he was entitled to receive. Most recently, in February, 1985, his application to fill the position of "Director of the Real Estate Division" was denied. (P-4) The Directorship of the Real Estate Division was vacated on January 31, 1985, as a result of the retirement of Jack W. Braun, who had held that position for approximately 12 years. Upon Mr. Braun's retirement, William C. Brannen, Jr., Director of the Land Management Department (which includes the Real Estate Division) assumed the position of Acting Director of the Real Estate Division until a new director could be hired. As Acting Director, he was Respondent's immediate supervisor during the interim period. The District has a long-standing written policy regarding annual leave, which requires prior written authorization from the immediate supervisor. The policy in effect in November 1982 and continuing through February 1985, states: Use of Annual Leave: a. * * * b. The use of annual leave shall require the prior approval of the employee's Supervisor or Division Director. Annual leave requests for more than 30 calendar days shall require prior written approval of the employee's Department Director. (p-10) The District's attendance and leave policy was revised on February 28,n 1985, but not with regard to the use of annual leave. The District developed and utilized a standard form for requesting annual leave. (P-11, P-12) On February 26, 1985, Respondent approached a co- worker, Andrew DuBois, and asked him to forward to Mr. Brannen (Acting Division Director) the following memorandum dated that day: In reference to the above subject matter, I have, at this writing, 200 plus hours of annual leave accrued and I intend to use whatever necessary to retain legal counsel to file suit on my behalf against this District. (P-1) He also asked Mr. DuBois to submit blank time sheets on his behalf. Mr. DuBois declined to become involved because he believed the matter was between Respondent and his supervisor. He did, however, remind Respondent of the need to obtain prior approval for annual leave. Respondent replied that he would not submit a leave request "for legal reasons." (P-34) He then left the District's offices and went home. Upon receipt of Respondent's memorandum, Mr. Brannen consulted with Mark Chapman, Director of the District's Personnel Department, as to the appropriate response. Mr. Chapman advised Mr. Brannen that Respondent was subject to disciplinary action under the District's Corrective Action Policy for taking unauthorized leave. (P-18, Section F.2.; Testimony of Brannen, Chapman Section C.7. of the District's Attendance and Leave Policy) Instead of initiating disciplinary action, Mr. Brannen telephoned Respondent and asked him to meet with him at 1:00 p.m. that day, February 26, 1985, to discuss his use of leave. At 1:00 p.m., Respondent, Mr. Brannen and the District's legal counsel, Thomas Schwartz, met at the District's offices. Mr. Brannen reminded Respondent that he was his acting supervisor and that his prior approval was required before Respondent could use annual leave. In reply to Respondent's expressed desire to seek legal counsel to file suit against the District, attorney Schwartz told him that his reasons for taking leave were immaterial with regard to whether a leave request would be granted. Respondent then asked for five days leave, through March 1, 1985. He completed the required leave forms and they were approved at the meeting. (P-2 Testimony of Brannen, Schwartz) Two days later, Mr. Brannen prepared a memorandum for the files summarizing the February 28, 1985, meeting. The memorandum, a copy of which was sent to Respondent by certified mail on March 1, 1985, and received on March 2, 1985, contains the following statement: We met at the appointed time and I explained to Russ that us of annual leave must have prior approval by me as his acting supervisor. We discussed how long he felt he needed to be on leave. Russ said he needed to be off through March 1, 1985. He filled out leave slips and I approved use of annual leave through March 1. (P-2) On February 28, 1985, Respondent returned to pick up his paycheck. On that date, Mr. Brannen and Mr. Dubois observed that Respondent's desk and office had been emptied of all personal materials and assumed that Respondent did not intend to return to work. (P-34; Testimony of DuBois, Brannen) Respondent's apparent intention not to return to work disturbed Mr. Brannen because there was a significant backlog of title examination work. Due to recruitment procedures it would have taken considerable time to hire a new title examiner, and recruitment could not be initiated until Respondent expressed a definite intention to resign. (Testimony of Brannen) Respondent's leave expired at 5:00 p.m. on Friday, March 1, 1985, but he did not return to work on Monday, March 4, 1985, the next working day. At 8:09 a.m. that date, Respondent telephoned Mr. DuBois, asking him to relay to Mr. Brannen his request for an additional week of annual leave through March 8, 1985. Mr. DuBois immediately relayed the request to Mr. Brannen, who telephoned Respondent at 8:21 a.m. at his residence, but received no answer. (P-3, P-34; Testimony of Brannen, DuBois) Mr. Brannen discussed Respondent's further unauthorized absence with Personnel Director Chapman, who again suggested that he take disciplinary action against Respondent for failure to follow instructions. Mr. Brannen, however again declined to take disciplinary action and instead decided to approve—after-the-fact—Respondent's verbal request for additional annual leave. On March 4, 1985, he mailed a letter to Respondent advising: Although you did not contact me as I instructed you to do, your use of annual leave through 5 p.m., March 8, 1985, is approved. You will be expected to return to work no later than 8 a.m., March 11, 1985. We have a backlog of title work to complete which requires your help; therefore, even though you have accrued annual leave, any further request for its use must be denied at this time. If you do not report to work as instructed you will be placed on an unauthorized leave without pay status until you return to work. After three days on unauthorized leave you'll be considered to have abandoned your job. (e.s.) Respondent received the letter on March 6, 1985. (P-3; R-2) On March 5, 1985, Respondent sent a letter to Stanley Hole, Chairman of the District's Governing Board, expressing dissatisfaction with the denial of certain promotions and alleging that the District had a policy of affording preferential treatment to friends and relatives. Respondent then stated that "I will interpret no reply or an adverse reply as an involuntary termination of 18 years of employment with District." (P-4) Although this direct communication with the Board circumvented the District's grievance procedures, the Executive Director of the District, fowarded a copy of the letter to the members of the Governing Board with a cover memorandum dated March 8, 1985. On that day, the District's Deputy Executive Director, Tilford C. Creel, sent Respondent a certified letter, which stated in relevant part: We do not agree with the general content of your letter and particularly we do not agree that you will be terminated due to "no reply or an adverse reply" to your letters. The authority to terminate employees resides in the executive office and in your case, Mr. Brannen informs me that you have been granted annual leave through Friday, March 8, 1985. He further informed me that the workload in the title examination area is such that we are in great need of your services and cannot extend your leave any further. There is only one other title examiner and the backlog of work continues to increase. Therefore, we will expect you to report to work on Monday, March 11, 1985, as you were adivsed by Mr. Brannen. (e.s.) (P-5; P-9) Respondent, however, failed to report to work on March 11, 1985. Neither did he telephone District officials, prior to or on that date to request an extension of his annual leave. Respondent also failed to report to work or telephone the District on Tuesday, March 12, 1985 or Wednesday, March 13, 1985. He was not ill or incapacitated or otherwise unable to reach a telephone. (Testimony of Brannen, Spencer) On Thursday, March 14, 1985, the District notified Respondent by certified letter that, effective at 5:00 p.m. on March 13, 1985, he was deemed to have abandoned his employment pursuant to Section C.7. of the District's Corrective Action Policy for failure to report to work for three consecutive working days. Personnel action was initiated that same date by Mr. Brannon. On March 29, 1985, the District notified Respondent by certified mail of his right to petition for an administrative hearing pursuant to Section 120.57, Florida Statutes, after first pursuing the normal grievance procedures. (P-6, P-7, P-8) Respondent requested a grievance hearing by letter dated April 5, 1985. The hearing was held by the Grievance Review Board on April 17, 1985. The Review Board consisted of two supervisory personnel and two non-supervisory personnel, selected at random by Respondent. After Respondent failed to appear at the hearing, the Board concluded that Respondent had ample notice and opportunity to return to work and that termination of his employment was justified and consistent with District policy and procedure. (P-13) Respondent then appealed the Grievance Review Board determination to the Executive Director, who affirmed it. It was a long-standing District policy that unau- thorized absence from work for three consecutive days would result in termination of employment. On March 14, 1985, the District had in effect an interim written guideline, stating: Any employee who fails to report to work for three (3) consecutive working days without notifying the division office or fails to report to work after a leave of absence has expired or after the leave has been disap- proved, revoked, or cancelled will automati- cally be considered to have resigned his/her employment with the District, barring the supervisors consideration of extenuating circumstances. (P-15,P-18, Section C.7.) This interim guideline was ultimately adopted as a rule, effective April 7, 1985. The District policy in effect prior to the adoption of the interim guideline on February 1, 1985, had a similar provision: Any employee who fails to report to work for three (3) full consecutive working days without notifying the District may be considered to have abandoned the position. (P-15,P-16,P-17) In implementing this long-standing policy, the District routinely terminated the employment of employees who failed to report to work for three consecutive days. The revised (interim and final) policy contains an exception for "extenuating circumstances," which is reasonably interpreted by the District to cover situations where a sudden emergency or physical impairment prevents an employee from reporting to work. In any event, the employee was still expected to telephone the District, except where prevented by a physical impairment. (P- l9,P-20,P-21,P-22, P-23,P-24,P-26 Testimony of Chapman Thomas) The District uniformly requires adherence to attendance and leave regulations throughout its work force. At its West Palm Beach Field Station, which is responsible for maintaining District projects in the West Palm Beach area, em- ployees are routinely given written notices of any lateness in reporting to work, even if only a few minutes. Repeated tardiness or other cumulative infractions of the District's attendance and leave regulations, which do not involve a failure to report to work for three consecutive days, have also resulted in discharge. It is also a common District practice to deny leave requests when work duties require an employee or supervisor to be at work. (P-25, P-27, P-29, P-31; Testimony of Thomas; Chapman) Respondent participated in the development of the revised Corrective Action Policy. Several meetings were held among the employees of his division, wherein the employees were given an opportunity to comment on various aspects of the proposed policy. Copies of the policy were distributed to the employees of his division prior to February 1, 1985, when it became effective as an interim guideline. (Testimony of Chapman; Braun; DuBois) Respondent's acting supervisor, Mr. Brannen, did not act in a retaliatory manner against Respondent in terminating his employment for failure to report to work for three consecutive days. On the contrary, on two prior occasions, Mr. Brannen had refrained from disciplining Respondent for violating the Attendance and Leave Policy. He valued Repondent's capabilities and long-term service to the District, and went to considerable lengths to accommodate him. Respondent was not in any way impeded by Petitioner in his attempt to seek legal counsel. He was able to confer with six attorneys during his leave of absence. (Testimony of Respondent)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent be deemed to have abandoned his employment (by failing to report to work for three consecutive working days, without authorized leave or extenuating circumstances) and his employment be thereby terminated effective 5:00 p.m. on March 13, 1985. DONE and ORDERED this 6th day of December, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of December, 1985.
