The Issue The issue presented is whether Petitioner should dismiss Respondent from her employment as a bus driver for an eight-day absence from work that was allegedly unauthorized.
Findings Of Fact Petitioner employed Respondent as a substitute bus driver on November 18, 2002. From February 10, 2003, through the date of the hearing, Petitioner employed Respondent as a bus driver. A bus driver is an educational support employee. Respondent was absent from work for eight days from February 2 through 11, 2005. The absence was not authorized. The unauthorized absence from February 2 through 4, 2005, comprised three days of unauthorized absence within one pay period. The unauthorized absence from February 7 through 11, 2005, comprised five days of unauthorized absence within one pay period. The eight-day unauthorized absence occurred during the regular school session. Respondent's supervisor scheduled a substitute bus driver to drive Respondent's assigned bus route. Respondent was absent from work for a vacation cruise in Chile. The unauthorized absence was not needed for medical or family reasons or for some other emergency. The terms of Respondent's employment are prescribed in the Collective Bargaining Agreement (CBA) between Petitioner and the Service Employee's International Union (SEIU). The terms of employment are further explained in a document identified in the record as the Bus Driver Handbook. Respondent had actual knowledge that she was entitled to only four personal days off from work with prior approval from Petitioner. Sometime in August or September 2004, an SEIU representative advised Respondent, in response to her inquiry, that the CBA authorized a maximum of four personal days off upon approval of Petitioner. Respondent did not disclose that she intended to be absent from work for a vacation while school was in session. On January 3, 2005, Respondent asked the dispatcher to approve eight personal days off for a vacation. The dispatcher explained that his authority to approve or disapprove leave requests was limited to requests for up to four personal days. Only the compound supervisor had authority to approve a request for authorized personal days in excess of four days. The compound supervisor denied Respondent's request before Respondent left for her vacation, and Respondent had actual notice of the denial. The denial was based in part on the ground that Respondent had no contractually authorized personal days in excess of four days during the regular school session. Even if she were to have authorized personal days in excess of four, the compound supervisor needed all of his bus drivers because school was in session. There was a shortage of bus drivers. February was a busy period in the school year. It was imperative that students have transportation to their schools. Absences in excess of authorized personal days must be requested on a form entitled Request for Leave of Absence, identified in the record as PCS Form 3-137. Respondent never requested a leave of absence on PCS Form 3-137. Rather, Respondent utilized the form authorized for requesting up to four personal days for the purpose of requesting a leave of absence of eight days. A request for a leave of absence on Form 3-137 would have been submitted to the director of transportation for Petitioner. The director never received such a request. Several aggravating circumstances are evidenced in the record. Respondent did not take the unauthorized absence for medical or family reasons or for some other emergency. Respondent took the unauthorized absence for her own leisure. Bus drivers, including Respondent, are nine-month employees. Respondent had other opportunities during the school year for vacations, including summer, a week at Thanksgiving, two weeks during Christmas, and a week during spring break. When school is in session, Respondent had no contractual right to more than four paid personal days. Respondent took the unauthorized absence with knowledge that her action would adversely affect her employer during a busy time of the school year. Respondent knew that the unauthorized absence would result in disciplinary action. Prior to her vacation, Respondent's supervisor suggested Respondent may want to remove her personal items from her bus before leaving for her vacation because she probably would face disciplinary action when she returned. Petitioner has imposed previous discipline against Respondent. Petitioner issued a letter of reprimand to Respondent for segregating black and white students on her bus.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violation and dismissing Respondent from her employment. DONE AND ENTERED this 3rd day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 3rd day of August, 2006. COPIES FURNISHED: Timberly S. McKenzie 446 Fifth Street, South Safety Harbor, Florida 34695 Laurie A. Dart, Esquire Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Timberly McKenzie 125 Rhonda Drive Clayton, Georgia 30525 Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner was employed by Respondent beginning in 1985 and, at all times material hereto, was supervised by Dr. Frank A. Coliazzi. Petitioner had been made aware of the rules and policy of the Respondent in regard to unauthorized leave of absence. Specifically, Petitioner was counselled in this regard on March 26, 1986, by Dr. Frank A. Colliazzi for his unauthorized leave of absence on March 25, 1986. Petitioner knew, or should have known, that un-authorized leave of absences could result in disciplinary action or the loss of employment through abandonment. Prior to April 14, 1986, Petitioner had a history of unauthorized leave of absences. In fact, Petitioner was absent without authorized leave on April 9 & 11, 1986, after being counselled as late as March 26, 1986 in this regard. Petitioner was absent without authorized leave on April 14, 15 & 16, 1986. Petitioner appeared briefly at the work place on April 15, 1986 but did not go to work and left immediately when requested to work by Dr. Colliazzi, with a promise to return to work the next morning, April 16; 1986, at 8:00 a.m. The Petitioner did not request a leave of absence at this time and did not return to work on April 16, 1986 as promised. Respondent's certified letter of April 16, 1986, informing Petitioner that Respondent considered him to have abandoned his position because of his three (3) consecutive days of unauthorized leave was not received by Petitioner until April 24, 1986 due to Petitioner's failure to notify Respondent of his change of address. However, Petitioner was made aware of the letter and its contents by Maxine Fields on April 21, 1986. Petitioner's failure to return to work on April 17 & 18, 1986, lends support to Respondent's contention that Petitioner had abandoned his job since Petitioner was not aware of Respondent's position on his abandonment until April 21, 1986. At no time relevant to this proceeding was leave requested by Petitioner or granted by Respondent. Although Petitioner received notice of the hearings, he failed to appear at either one and present evidence in rebuttal to Respondent's position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Respondent in deeming the Petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. RESPECTFULLY ENTERED and SUBMITTED this 25th day of November, 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 25th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2604 The following constitutes my specific rulings pursuant to Section 120.59(1), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by Respondent: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 4. 4. Adopted in Finding of Fact 5 & 8. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 7. 7. Adopted in Finding of Fact 6 & 7. 8. Adopted in Finding of Fact 9. COPIES FURNISHED: Judy Waldman, Esquire General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 Barbara Wingo, Esquire Associate General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 James H. Foster 3216 Lancastor Lane Tampa, Florida 33619 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case. At the hearing the Respondent offered eleven exhibits into evidence and presented the testimony of two witnesses, Charles Crozier and Sam Visconti. The Petitioner offered two exhibits, both of which were rejected. The Petitioner did not call any witnesses to testify on his behalf. He expressly declined to be sworn as a witness and testify on his own behalf, even after being specifically advised of his right to do so and being specifically advised that no findings of fact could be made on the basis of his unsworn assertions.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Leroy Williams-El, commenced his employment with the Respondent, Florida School for the Deaf and the Blind, in 1977. His last position was Dorm Supervisor I, which position he had held since the 1980-81 school year. The position Petitioner held was somewhat critical in that not only did he have to oversee the portion of the dormitory that was assigned to him, but he was also specifically in charge of the care and safety of some ten or twelve students. The Petitioner was a permanent employee, but his work period coincided generally with the school year and ran for ten months, generally from August to June each year. The Petitioner's last official work day was June 11, 1985. He was not in a work status during the summer of 1985. The dorm supervisors were supervised by Charles Crozier, Director of Student Life. At the end of the 1985 school year, the dorm supervisors remained at the school for approximately a week after the students had left and the administration conducted a post-planning week. During the post-planning week, Crozier met with the employees, discussed the upcoming 1985-86 school calendar, and Petitioner and the other dorm supervisors were told that their date to report back to work was August 26, 1985. In addition to discussing the return date with the various employees at the June post-planning meeting, Crozier, under date of August 21, 1985, mailed a letter to the Petitioner at his last known address as it appeared in the school file, that is, 75 1/2 Lincoln Street, St. Augustine, Florida 32084, reminding the Petitioner that his return date for reporting back for work was August 26, 1985. The Petitioner did not return to work as instructed on August 26, 1985. On August 27, 1985, the Petitioner called Crozier and advised Crozier he had been unable to report to work on August 26, 1985. He was advised by Crozier that he must report to work on Thursday, August 29, at 8:00 a.m. (Exhibit 2) The Petitioner did not report to work on August 29, but instead again called Crozier. Crozier, at this point, got the personnel officer of the school, Sam Visconti, on the phone with him. During the conversation on August 29, 1985, the Petitioner requested that the school "transfer" him to a position with the Department of Health and Rehabilitative Services in Miami. Crozier and Visconti both explained to him that the school had no authority to "transfer" the Petitioner to another job with another agency in another city. He was told that he should report to work immediately or submit a request for leave without pay. At the time of Petitioner's telephone call on August 29, 1985, Crozier had already prepared a letter dated August 29, 1985, advising the Petitioner that inasmuch as he had failed to report to work on August 26 and had not reported on August 29 as directed, he was being given an official reprimand. He was further advised that if he did not contact Crozier by September 4, 1985, he would be suspended without pay and failure to report to work would result in his termination. The Petitioner did not report to work on September 4, 1985, as instructed. On September 6, 1985, Crozier received a call from Lynn Rowe, Visconti's assistant in the personnel office, relaying a telephone call from a lady purporting to be the Petitioner's sister. Ms. Rowe was inquiring whether or not Crozier had any instructions for the Petitioner. Crozier advised Ms. Rowe that the Petitioner was to report to work by the time his normal work week would start, which would be Sunday, September 8. The Petitioner did not report to work on September 8, September 9, or September 10, 1985. The Petitioner did not call in and make contact with Crozier or Visconti on any one of those days. When the Petitioner did not report to work for those three days, Crozier again contacted Sam Visconti, the personnel officer, and reported this fact to him. At no time during the period from August 26 through September 10, 1985, did the Petitioner request from Crozier or Visconti, the personnel officer, annual leave, leave without pay, or any other type of approved leave. The conversations he had with Crozier and Visconti concerned a request that he be "transferred" to a job with the Department of Health and Rehabilitative Services in Miami. On September 11, 1985, after Crozier advised Visconti of the Petitioner's failure to report to work, Visconti prepared a dismissal letter under the date of September 11, 1985. This letter summarized the chronology of events concerning Petitioner's failure to report to work and advised the Petitioner that he was considered to have abandoned his position. Petitioner was further told of his right to seek a determination and review of his abandonment. The letter of September 11, 1985, was mailed to the Petitioner's last known address in the personnel file, which was the St. Augustine address. Late in the afternoon of September 11, Petitioner called Visconti and informed him of the new address in Miami, Florida. Visconti then sent an additional copy of the same letter to Petitioner on September 13, 1985, to the Miami address. The Florida School for the Deaf and the Blind is a separate state agency and is not in any way connected with the Department of Health and Rehabilitative Services. Furthermore, the Florida School for the Deaf and the Blind has no offices or positions available in the Miami area. Visconti and Crozier discussed with Petitioner his repeated requests for a "transfer" on more than one occasion and repeatedly advised him the Florida School for the Deaf and the Blind had no authority to transfer him to a different job with another state agency. At no time did the Petitioner request a leave of absence from Visconti. Visconti advised the Petitioner of the critical nature of his position as a Dorm Supervisor I and explained to him the difficulties created by Petitioner's failure to return to work. Visconti further advised the Petitioner that if he wanted a leave of absence, the personnel officer had to receive the request for the leave of absence in writing and the president of the school would consider the request after it had been received. It was imperative, however, that the Petitioner either bring or mail in a written request for a leave of absence. The Petitioner did not send a request for leave of absence to the school. The last conversation Crozier had with the Petitioner occurred sometime in late October or November and concerned a request by the Petitioner that Crozier send a copy of the Petitioner's college transcripts to an HRS office in Miami. At that time the Petitioner did not request to be re-employed or to be reinstated. Crozier mailed the materials as requested. Williams did not report to the school for employment on or after August 26, 1985, and was considered to have resigned effective September 10, 1985.
Recommendation Based on all of the foregoing it is recommended that a Final Order be issued concluding that the Petitioner abandoned his position and that his petition should be dismissed. DONE AND ORDERED this 11th day of July 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July 1986. COPIES FURNISHED: Mr. Leroy Williams 1360 N.W. 199th Street Miami, Florida 33169 Mr. Leroy Williams-E1 10566 McLaurin Road Jacksonville, Florida 32216 Mr. Samuel R. Visconti Personnel Officer Florida School for the Deaf and the Blind 207 North San Marco Avenue St. Augustine, Florida 32084 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32301 Gilda H. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Richard L. Kopel, Esquire Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the findings of fact proposed by each of the parties. Findings proposed by Petitioner The rulings which follow immediately below refer to the five (5) unnumbered paragraphs which appear under the caption "Facts To Examine" in Petitioner's post-hearing document titled Order To Commence On Final Argument. The paragraphs are referred to in the order in which they appear. First paragraph on first page: First sentence is rejected as constituting a conclusion not supported by the evidence. The last sentence is accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence. First paragraph on second page: The first two sentences are accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. Second paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence. Third paragraph on second page: This paragraph is rejected as constituting argument rather than proposed findings. Fourth paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence. Findings proposed by Respondent All of the findings proposed by the Respondent have been accepted with a few editorial modifications in the interest of clarity and accuracy. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION LEROY WTLLlAMS-EL, Petitioner, vs. DOA Case No. AB-85-18 DOAH Case No. 85-3600 FLORIDA SCHOOL FOR THE DEAF AND BLIND, Respondent. /
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Edith Rogers, was employed as a data operator with the Indian River County Health Unit, a sub-unit of the Department. She was hired by the Department on January 4, 1988 and began working for Gerry L. Waite as a data operator in October, 1988. When employees are hired by the Health Unit, they are briefed on the unit's leave policies and procedures and are given a copy of the unit's personnel policies for which each employee is obligated to sign a receipt. That portion of the handbook dealing with absences provides that when possible, employees requesting to be absent should request authorization from their supervisor in advance. If prior application is not possible, and absence is necessary, the employee is to call in at the earliest possible moment to let the supervisor know what is going on and approximately how long the employee will be absent. Respondent has complied with these policies on several occasions in the past. On July 26, 1991, a Friday, the Respondent was at her place of employment and there was no indication given that she was experiencing any difficulty. The following Monday, however, July 29, 1991, she did not report for work and Ms. Waite, her supervisor, knew from an article which had appeared in the prior day's newspaper, that Respondent had been arrested. Respondent did not call in on that day, nor did anyone else call in for her. Respondent remained in jail until August 19, 1991. Subsequent to Monday, July 29, 1991, Ms. Waite called the jail twice a week to check on the Respondent's statue. Each time the Respondent was there. At no time during that period did Respondent, or anyone else on her behalf, call her duty section and speak with her supervisor regarding the basis for her absence, nor did Respondent write a letter to explain, though she was able to do so. Mrs. Rogers did not come to work on August 20, 1991, a Tuesday and the day after her release from jail, nor did she come in on August 21 or 22, 1991, the following Wednesday and Thursday. There was no contact from the Respondent, and her absence subsequent to her release had not been authorized. Ms. Waite is satisfied that Respondent knew the abandonment provisions and the potential results of failing to appear for several days without authority since, in 1984, a similar action was taken regarding her employment with the Department in St. Lucie County, and she was deemed to have abandoned her position at that time. Respondent was seen in Walmart by another Department employee on the morning of Tuesday, August 20, 1991. At that time she was buying clothes for her 13 year old son preparatory to getting him enrolled in middle school. She admits she did not call her office on that day, however, on Wednesday, August 21, 1991, after arranging to have the power to her residence turned on and taking care of some other personal affairs, she called a friend of hers, Mrs. Brenda Troutman, who works for the Health Unit in its vital statistics division, and explained where she was. Ms. Troutman, however, was not working in Respondent's division nor was she in any supervisory capacity over her. Though Ms. Rogers claims she asked Ms. Troutman to notify Ms. Waite of her status for her, Ms. Troutman declined to do so, suggesting Ms. Rogers make the contact herself. On Thursday, August 22, 1991, Respondent did call her office and asked to speak with Ms. Waite. Unfortunately, she called at lunchtime, sometime between 1 and 1:15 PM, and neither Ms. Waite, nor anyone else in authority was there to speak with her. Respondent admits she did not leave her name at the time of that call. The evidence is clear that at no time, from the time Ms. Rogers was placed in jail in July until Ms. Waite spoke with her on the evening of Friday, August 23, 1991, did Respondent, or anyone on her behalf, make any sincere effort to contact the Unit to explain, officially, to anyone in authority where she was, the reason for her absence, and when she would be back. At that time, Ms. Rogers advised Ms. Waite that she would be back to work on August 26, 1991, but Ms. Waite told her then it was too late as she had already been processed for abandonment of her position. Ms. Waite is quite certain that Ms. Rogers is and was aware of the procedures to be used when an absence is anticipated or when it was unavoidable, because Respondent has taken advantage of these procedures and utilized them several times in the past during the period she has been working for the Department. According to Ms. Register, the employee specialist with the Department's District office, there is a difference between an abandonment action and a termination for cause. The latter is a disciplinary action and is appealable through the Public Employees Relations Commission or through union grievance procedures. The abandonment is a determination made after an unauthorized absence with a provision for review, and is more a constructive action determined on the basis of the employee's failure to appear. Respondent is quite insistent that she did not intend to abandon her position and intended to come back to work the Monday following her release, (August 26, 1991). She claims one of the reasons for her delay in going back to the office was her embarrassment in going back and facing her coworkers after having been in jail, but she contends that at all times she wanted her job back. She differentiates her situation in this case from that in the 1984 abandonment action. Then, she admits, she walked away from her job because of her addiction to cocaine. Here, she claims, this was not her intent, and she fully intended to go back to work just as soon as she was able to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered finding that Respondent, Edith Rogers, abandoned her position with the Indian River County Health Unit and resigned from the Career Service. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK 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 24th day of January, 1992. COPIES FURNISHED: Karen M. Miller, Esquire DHRS, District 9 111 Georgia Avenue West Palm Beach, Florida 33401 Charles A. Sullivan, Jr., Esquire Post Office Box 2620 Vero Beach, Florida 32961-2620 John Slye General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Secretary Specialist for Respondent. In December 1988, Petitioner planned a trip to Haiti to be married and requested annual leave for the work period of December 9 through December 14, 1988, which was approved. Although she was aware of the political unrest in Haiti, Petitioner departed on December 16, 1988 with the intent to return on December 19, 1988. When she returned to the airport on December 19, 1988, she was told that she could not obtain a boarding pass and the next available flight was not until December 22, 1988. Realizing that the delay would result in her absence for three consecutive work days without approved leave and her possible termination, Petitioner attempted to telephone her immediate supervisor. She was told that outgoing calls were limited. At around 7:00 p.m. on December 9, 1988, she was successful in placing the call; however, her call was not answered. She next called her next level of supervisor who also did not answer. Finally, she reached her sister who was to relay the circumstances of her delay to Petitioner's supervisor. Yet, when Petitioner's sister attempted to call the supervisor, she was unable to reach him and did not try again. On December 22, 1988, Petitioner returned to Miami and was informed that she did not have a job. Although Petitioner's airline situation might have been considered an emergency which might have allowed her leave to be continued, reasonable notice to her supervisor of her plight was still required unless the prohibition of notice itself was the emergency. Here, notice by telephone was possible. Petitioner's attempts to contact her employer, although stringent under the circumstances, failed because she did not verify that her message had been received. Thus, Petitioner's absences on December 19 through 21, 1988, were unauthorized; Petitioner abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. JANE C. HAYMAN 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 28th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1184 Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed, in part, in paragraphs 2 and 4. Subordinate to the result reached. Subordinate to result reached. Addressed in paragraph 5. Addressed in paragraph 5. Not supported by competent and substantial evidence Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. COPIES FURNISHED: Ms. Doris B. Cantave Dorcilin 1238 N.E. Krome Terrace Apartment 1 Homestead, Florida 33030 Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Alkens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 =================================================================
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Louis C. Germain, has been employed with the Department of Health and Rehabilitative Services, Foster Care Unit-452 since late 1984 or early 1985. On the morning of February 3, 1986, the Petitioner was involved in an automobile accident during the course of his employment while enroute to pick up a client who had a court appointment. As a result of the accident the Petitioner sustained several injuries, including a nose injury, back pains, headaches and blurred vision. The Petitioner was taken to his physician's office. At approximately 4:30 p.m. on February 3, 1986, the Petitioner called his immediate supervisor, Ms. Shelia Weiner, and advised her of the accident and of his injuries. On Friday, February 7, 1986, the Petitioner went to his office to pick up his pay check. The Petitioner spoke with Ms. Weiner and informed her that he did not know when his physician would allow him to return to work. On Monday, February 17, 1986, the Petitioner returned to the office once more to pick up a pay check. Ms. Weiner told the Petitioner that he had to report to work on Thursday, February 20, 1986. The Petitioner told Ms. Weiner that he was still suffering from injuries sustained in the February 3, 1986 accident and that he did not know when he would be able to return to work. On February 20, 1986, Ms. Weiner wrote the Petitioner a letter stating that his absence from work since February 17, 1986 had not been authorized. The letter stated in part that: "You are directed to report to work immediately and provide an explanation for your absences." The Petitioner received Ms. Weiner's letter on Saturday, February 22, 1986. On Tuesday, February 25, 1986, the Petitioner had an appointment with his physician and obtained a medical statement from her. The Petitioner's physician indicated in the medical statement that Petitioner had been under her care since the automobile accident of February 3, 1986, that Petitioner sustained multiple injuries in the accident and that Petitioner was now able to return to work. The Petitioner returned to work on February 25, 1986 and was advised that he needed to speak with Mr. Carlos Baptiste, supervisor of the personnel department. The Petitioner presented the letter from his doctor to Mr. Baptiste, but Baptiste was not satisfied with the doctor's statement and felt that it was "insufficient." Baptiste asked the Petitioner if he had a towing receipt or an accident report to confirm the accident of February 3, 1986. The Petitioner replied that he did not. The Petitioner was not allowed to return to work. At the final hearing, Mr. Baptiste stated that: "If Mr. Germain had produced an accident report, he would still be working with HRS." The Petitioner's leave and attendance record maintained by DHRS reflected that the Petitioner was given sick leave from February 3 to February 6, 1986. From February 7 to February 20, 1986 the Petitioner was placed on leave without pay. On March 3, 1986, Ms. Sylvia Williams notified the Petitioner by certified mail that due to his absence from work since "February 17, 1986", he was deemed to have abandoned his position and to have resigned from the Career Service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Administration enter a final order reinstating Petitioner to his position with the Department of Health and Rehabilitative Services, Foster Care Unit-452 in Miami, Florida. DONE and ORDERED this 4th day of February, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3319 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 11. Matters not contained therein rejected as argument. Addressed in Conclusions of Law section. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as argument. Rejected as argument. Rejected as argument. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a recitation of testimony and/or argument. Adopted in substance in Finding of Fact 6. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as mis- leading. Rejected as subordinate. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: Louis C. Germain 308 Northeast 117 Street Miami, Florida 33161 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue - Suite 790 Miami, Florida 33128 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The issue is whether Petitioner may lawfully discipline Respondent due to excessive absences from work.
Findings Of Fact Petitioner employed Respondent as a police officer in the Operations Division of the Cape Coral Police Department (Department) from October 5, 1987, through approximately April 27, 1998, when Petitioner terminated her employment. As detailed below, Petitioner monthly provides its employees with a specified amount of leave, based on their years of service. Petitioner credits all leave in a single account. Employees then draw on their leave account by taking scheduled and unscheduled leave. This case involves Respondent's use of allegedly excessive amounts of leave. In 1989, Respondent used 125.76 hours of unscheduled leave. On May 23, 1989, she received an interim performance evaluation noting that she was "below acceptable" in unscheduled leave time and needed to improve her relations with other employees. On October 13, 1989, she received an annual performance evaluation stating that she had had 18 days "sick leave" in the preceding 12 months and was below "operational standard" in attendance and relations with others; all of her other categories were marked as meeting operational standard. The attached narrative notes a "slight improvement" since her May 1989 interim performance evaluation. In 1990, Respondent used 198.5 hours of unscheduled leave. Her October 12, 1990, annual performance evaluation states that Respondent was again below operational standard in attendance with 23.25 days of "sick leave." She had raised her relations with others to operational standard and work habits to above operational standard. The narrative attached to the evaluation states that the evaluator has spent a sizable amount of time conferring with Susan regarding causes to her illnesses and resulting time off due to illness. Officer Von Halla does have problems with migraine's and when she experiences one, she is [less than] an effective part of the shift in fulfilling her normal duties. I have tried to understand why she experiences so many migraines and have suggested different activities (i.e. physical exercise, stress reduction). I am confident that despite the significant amount of time taken due to illness, when this officer calls in sick, she is sick and does not use this time for other unknown reasons. I feel, currently, Officer Von Halla is attempting to minimize the amount of times she calls in sick. Despite some improvement recently, Officer Von Halla still is in need of progress in this area so her time reserved starts reflecting this. The narrative concludes that Respondent can improve her weak point, which is attendance, by "finding new ways to minimize the migraine potential and making a genuine effort towards this." Another evaluative document speaks in a very different tone from the annual performance evaluation, which is signed by a sergeant who was Respondent's immediate supervisor. On October 2, 1990--only 10 days before the 1990 annual evaluation-- a captain reviewed Respondent's use of unscheduled leave and warned: you are hereby notified that this level of unscheduled leave time usage will no longer be tolerated. You will be required to achieve a level of usage that is consistent with the national and department average which equates to approximately sixty hours per year, or five hours per month. If you fail to maintain this rate between October 1, 1990 and December 31, 1990 I will request that the Chief of Police consider terminating your employment effective January 1, 1991. If you are successful, you will be expected to maintain this average with the exception of documented major medical complications that require the use of extended leave. By memorandum dated December 14, 1990, from the captain to the police chief, the captain stated: On October 2, 1990, I advised Officer Von Halla that she would be required to maintain an acceptable level of unscheduled leave usage through December 31, 1990. The level of usage was established at five (5) hours per month, or a total of 15 hours for the period of October 2, 1990, through December 31, 1990. . . . Since October 2, 1990, Officer Von Halla has chosen to utilize forty (40) hours of leave. Thirty-two (32) hours were for illness as noted by her chiropractor and eight (8) for unexpected visitors. The captain's memorandum reasons: "In analyzing Officer Von Halla's unscheduled leave, it is clear that her utilization of unscheduled leave far exceeds any norms and Officer Von Halla is clearly abusing this city benefit." The memorandum states that, after consulting with the city attorney and city manager, the captain was recommending that Petitioner initiate termination proceedings against Respondent. By memorandum dated January 17, 1991, the captain asked a lieutenant to convene a Command Review Board to evaluate Respondent's excessive absenteeism and her violation of three groups of general orders prohibiting feigning of illness and failing to perform duties, abusing sick leave, and engaging in any conduct adversely affecting the morale and efficiency of the Department. The memorandum explains the last alleged violation as noting that the department had had to use 66 hours of overtime, at a cost of $1125, to cover shift shortages caused by Respondent's unscheduled absences. The Command Review Board sustained the allegation that Respondent had abused her unscheduled leave, but rejected the allegations of feigning illness and failing to perform duties and engaging in any conduct adversely affecting the morale and efficiency of the department. Accordingly, the Command Review Board recommended that the police chief suspend Respondent without pay for one day. By memorandum dated February 2, 1991, the police chief adopted the findings and determinations of the Command Review Board and suspended Respondent for one day. By memorandum dated February 14, 1991, Respondent protested the proposed discipline and demanded a hearing. The arbitrator entered a decision on June 24, 1991, that the police chief had just cause for suspending Respondent for one day without pay. Respondent served this suspension. The next annual performance evaluation is dated January 25, 1992. Respondent earned marks of above operational standard in job knowledge, quality of work, initiative, work habits, and appearance. Her only mark of below operational standard was in attendance. In the preceding 15.5 months, Respondent had used 18 days of "sick leave" and had one day without pay, due to her exhaustion of leave. From May 1990 through April 1991, Respondent used 148 hours of unscheduled leave. The evaluations and memoranda from 1992 through 1994 are largely the same: average or above-average performance in all areas but attendance. The records note only the excessive use of unscheduled leave, but do not attribute the use to fraud. From January 13, 1994 through December 26, 1997, Respondent used 691.72 hours of unscheduled leave. On February 12, 1995, the former captain, now a major, recommended that the Department suspend Respondent without pay for three days due to excessive use of unscheduled leave. By memorandum dated February 27, 1995, the police chief, "with some reluctance," concurred with the recommendation of three days' suspension. On April 18, 1995, a Departmental disciplinary review board met and failed to agree on corrective action. The board recommended only that the Department remove Respondent from field duty and place her in a noncritical position. Upon further deliberations, the board agreed upon a two-day suspension. Respondent served this suspension in June 1995, and the following month a quarterly evaluation dated July 1, 1995, notes that she was still using unscheduled leave. A memorandum dated September 10, 1995, notes that Respondent used 213 hours of unscheduled leave in the first eight months of 1995. By memorandum dated September 20, 1995, the major and three of his subordinates, including the person with immediate supervisory authority over Respondent, recommended to the police chief that the Department terminate Respondent due to excessive use of unscheduled leave. Rejecting the recommendation for termination, the police chief imposed a 30-day suspension without pay, based partly on the assurance of Respondent's physician that the cause of her constant illness had been corrected. Respondent served her suspension from November 22- December 21, 1995. Quarterly evaluations in June 1996 and March 1997 note some improvement in the use of unscheduled leave. From October 1996 through September 17, 1997, Respondent used 180 hours of unscheduled sick leave. From October 1, 1997, through January 26, 1998, Respondent used 82 hours of unscheduled leave. By memorandum dated January 26, 1998, the major advised the police chief of Respondent's continued use of unscheduled leave and recommended termination. By notice to Respondent from the police chief dated February 13, 1998, the chief advised Respondent that he was considering disciplinary action, including termination. The notice cites the following grounds from Article Seven, Section C, Ordinance 50-94: excessive unauthorized tardiness or absence from work, violation of Department work rules or operating procedures, actions or conduct detrimental to Petitioner's interests, or any other properly substantiated cause that adversely affects Petitioner. The notice alleges that Respondent's conduct also violates department General Order D-1.IV.36, which prohibits excessive use of unscheduled leave. The notice summarizes Respondent's past use of unscheduled leave and the discipline that she had received. The notice asserts that she had used 96 hours of unscheduled leave in the past four months. By letter dated March 12, 1998, Respondent advised the police chief that her ear, nose, and throat physician had placed her on Predisone, which had eliminated her debilitating headaches. By letter dated March 16, 1998, the police chief provided Respondent final notice of proposed disciplinary action for the four grounds mentioned in the prior notice. Respondent has raised an issue of disparate treatment. However, the record fails to reveal other, similarly situated employees with comparable patterns of usage of unscheduled leave. The record contains a detailed record of Respondent's relevant payroll history from January 1, 1994, through May 1, 1998, on which date Petitioner terminated her. By year, these records disclose the following totals of hours for unscheduled leave and leave without pay, the latter of which is due to Respondent's exhaustion of her granted leave: 1994--190 and 48.22; 1995--201 and 148; 1996--94 and 42; 1997--174 and 58; and 1998 (four months)--32.72 and 0. The respective totals are 691.72 and 296.22 hours. Respondent's use of unscheduled leave and leave without pay far exceed the averages for the Department. Respondent is a member of a collective bargaining unit, which is represented by the Florida State Lodge of the Fraternal Order of Police (FOP). Petitioner and FOP negotiated a collective bargaining agreement in effect from October 1, 1997, through September 30, 2000 (Agreement). Article 3, Section 1, of the Agreement provides: Except as specifically abridged or modified by a provision of this Agreement, City will continue to have, whether exercised or not, all of the rights, powers and authority heretofore existing, including, but not limited to, the following: . . . to hire, transfer, promote and demote employees; to direct employees, to take disciplinary action up to, and including, termination; to relieve employees from duty because of lack of work or for other legitimate reasons; [and] to issue rules and regulations . . .. Article 10, Section 2, of the Agreement describes the forms of discipline as follows: In accordance with Police Department General Order D-1 (as dated April 1, 1993), forms of corrective action will be utilized by City with the approval of the Police Chief shall include: Counseling or Re-Training--to correct and improve employee performance; Reprimand--a written statement warning the employee of the consequence of future misconduct of a similar nature; Suspension-- suspension from duty without pay; Demotion--a change to a position of lesser responsibility and salary; and Termination--dismissal from the Police Department. Article 10, Section 3, of the Agreement provides that Petitioner shall use "[p]rogressive corrective action," unless the severity of the offense dictates a more severe action. Article 11 of the Agreement provides that Petitioner may take disciplinary action against an employee for "just cause." Article 15, Section 1(a), of the Agreement grants employees with five or less years of continuous service 25 days of annual leave per year. Article 15, Section 1(b), grants employees with 6-10 years of continuous service 30 days of annual leave per year. The remaining subsections grant more leave based on years of service. Article 15, Section 1(g), of the Agreement provides: The use of annual leave for other than illness must be scheduled with the employee's supervisor. In case of illness, an employee must notify his/her supervisor not later than two (2) hours before the beginning of the scheduled work day or in accordance with Police Department Rules and Regulations. The Agreement provides that Petitioner may discipline covered employees for "just cause," but does not identify what constitutes "just cause." Ordinance 50-94 (Ordinance) sets forth the rules and regulations governing all of Petitioner's employees. Article One, Section B.2, states that the Ordinance covers employees who are parties to a collective bargaining agreement, "except that in the event of a conflict between the terms of this Ordinance and the collective bargaining agreement, the collective bargaining agreement shall govern." Article Six, Section E, provides that an employee may be dismissed for "just cause," but that the department head must comply with the procedures in Article Seven prior to termination. Article Seven, Section B, requires progressive discipline for "the same or similar conduct by the employee," although Petitioner reserves the right to impose the most severe discipline as an initial measure "when circumstances warrant." Article Seven, Section C, cites several grounds for discipline, including "[g]ross neglect of duty or specific serious failure to perform assigned duties"; "[m]ental or physical impairment, normally as supported by written documentation from not less than two licensed physicians, that prevents the employee, even with reasonable accommodation, from performing the essential functions of his or her position"; "[a]bsence without leave, or failure to give proper notice of absence"; "[e]xcessive unauthorized tardiness or absence from work"; "[v]iolation of Department work rules or operating procedures"; "[a]ctions or conduct detrimental to the interests of the City"; or "[a]ny other properly substantiated cause which adversely affects the City." Article Seven, Section D, requires that the employee proceed with a grievance for proposed discipline under the ordinance or collective bargaining agreement. Section E.5 describes the hearing conducted under the ordinance, which is the procedure that Respondent elected, and states, at Subsubsection 7, that the Administrative Law Judge is to determine if Petitioner proves by a preponderance of the evidence "just cause" for the discipline. Subsubsection 8 provides that the order is a final order. Subsubsection 9 provides for judicial review. Article Eleven describes attendance and leave. Section A.6.a provides that fulltime employees shall be present at their assigned jobs, "unless absence from duty is authorized by the Department Head as provided herein." Section A.6.c states in part: Excessive unscheduled absences or tardiness shall be grounds for disciplinary action. For purposes of this paragraph, "excessive unscheduled absences or tardiness" shall mean use which is in excess of the average number of hours and/or occurrences of unscheduled leave taken by other City employees in the same or similar positions . . .. Article Seven, Section E.3, defines unscheduled leave as that which the employee requests and the supervisor approves on the day that it is taken. This section states: "An employee's excessive use of unscheduled leave may be grounds for disciplinary action." Section E.1 contains a schedule for the accrual of leave, and the applicable monthly accrual rate, which increases with seniority, applies to the total of each employee's scheduled and unscheduled leave. Department General Order D-1 (General Order), as last revised on December 11, 1995, provides, at Section II, that it applies to [ALL] members of the Department. This section states that the police chief will use progressive discipline, "unless the severity of the offense dictates a more severe action." Section IV prohibits various acts, including feigning illness, avoiding responsibility, or failing to perform one's duties; "excessive use of unscheduled leave"; or engaging in conduct that adversely affects the morale and efficiency of the department. By memorandum dated July 20, 1987, a major in the Department advised all operations division personnel that absences, "regardless of cause," weaken the Department's ability to serve the public though personnel shortages, increase personnel costs due to overtime to cover absences, and increase burdens on other employees. The safety of the public and law enforcement officers requires a minimum staffing of law enforcement officers on each shift. The absence of a scheduled officer requires that the Department pay overtime for an unscheduled officer to report for duty. The record does not demonstrate that unscheduled absences of an officer, up to the total amount of granted leave, compromise the safety of the public or other officers. The contrary inference is precluded in part by the fact that, in the Agreement, Petitioner grants each officer a certain amount of leave and does not further restrict the officer's choice to use his or her granted leave as unscheduled leave. However, the use of unscheduled leave in excess of the granted leave is not anticipated by the Agreement and may compromise the safety of the public and other officers.
The Issue Whether Petitioner received a salary overpayment for the pay period ending November 9, 2000, for which the State of Florida is entitled to be reimbursed.
Findings Of Fact Petitioner was employed by the State of Florida, Department of Juvenile Justice (Respondent) as a Group Treatment Leader, Class Code 5721, for a four-month period ending on November 6, 2000. This is a career service position. Petitioner resigned from the Respondent on November 6, 2000, due to significant personal problems associated with his marriage. Petitioner's resignation was accepted by his supervisor on the same day. Petitioner was not a permanent career service employee on the date of his resignation. Petitioner received a final payment for work performed for the period October 27, 2000 through November 5, 2000, on approximately November 20, 2001. Petitioner was concerned about the possibility of overpayment and contacted his local personnel office to inquire about it. Petitioner was told by his office personnel officer not to be concerned about it. At that time, Petitioner believed the matter to be resolved and no longer an issue. By letter dated May 16, 2001, Petitioner received correspondence from Respondent alleging that he was overpaid and seeking reimbursement in the amount of $233.53 for 21.0 hours of earned annual leave that was not compensable. The notification was not prompt, but is was made in a timely manner. On May 21, 2001, Petitioner requested a formal hearing before the DOAH. On June 26, 2001, Respondent notified Petitioner that a further audit revealed that he was entitled to be paid for 8.0 hours of special compensation leave. Applying these hours to the overpayment left a balance of 13.0 hours, equaling $144.57 due. While this matter was pending before DOAH, that amount was garnished from Petitioner's wages by the Comptroller, without prior notification. Petitioner had 21.0 hours of earned annual leave while employed by Respondent. Due to excessive working hours and the critical nature of the position with Respondent, Petitioner had very limited opportunities to use his leave during the time he was employed by Respondent. Due to the short time that he was employed by Respondent, Petitioner's earned leave was not transferable to the Department of Heath, his current employer. Petitioner seeks to withdraw his original letter of resignation and substitute a new letter, to be effective November 20, 2000. This would allow him to use the annual leave and special compensatory leave to account for the period in question and cancel the garnishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary enter a final order authorizing the garnishment of Petitioner's wages in the amount of $144.57 for salary overpayment for the pay period ending November 9, 2000. DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of November, 2001. COPIES FURNISHED: Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Sheldon S. Scrivener 5253 Jamaica Road Cocoa, Florida 32927-9058 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
