The Issue Whether Respondent should have been suspended from her position with Petitioner as a school bus aide, and whether Respondent should be dismissed from her position.
Findings Of Fact At all times material to this proceeding, Petitioner, The School Board of Dade County (Board), was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida,1 pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Jamella R. King (King), was employed by the Board as a school bus aide from November 1989 until her suspension in July 1997. The position of school bus aide is governed by the Collective Bargaining Agreement between the American Federation of State, County, and Municipal Employees (AFSCME) and the Board. Since 1993, King's employment history has been characterized by excessive unauthorized absences, tardiness, and a continued disregard for administrative directives. In December 1993, King participated in a conference-for- the-record (CFR) because of her excessive unauthorized absences. Respondent was referred to the Employee Assistance Program (EAP), a confidential, collectively bargained for benefit which assists employees who may be having problems that, while not associated with employment, may be interfering with their performance. King refused to attend the scheduled counseling sessions. In February 1994, King participated in another CFR to discuss her attendance problem. The seriousness of the situation was brought to King's attention, and she was directed to improve her attendance. King was again referred to EAP, but failed to avail herself of these services. On or about January 22, 1996, a Transportation Operations Procedures Reminder (Reminder) was given to King. The Reminder set forth the Board's attendance policies and advised King that she currently had four and a half days of unauthorized leave. On April 30, 1996, another Reminder was given to King, addressing her attendance deficiencies. At that time, King had accumulated the equivalent of at least ten days of unauthorized absences in the 1995/1996 school year. From August 28, 1995, to May 28, 1996, King accumulated the equivalent of 21 days of unauthorized absences. On or about June 10, 1996, a CFR was held with King to review her continued disregard of proper attendance practices. King was again referred to EAP and was advised that she must improve her attendance. King was warned that her failure to improve could result in termination of her employment. King refused to follow this directive and continued to accumulate unauthorized absences. In July 1996, King signed in for work, but failed to go to her assigned route. King was issued a letter of warning for failure to complete her assigned route. King's supervisor directed her to improve her attendance. King failed to improve her attendance. As of October 10, 1996, King had accumulated 36 days of unauthorized absences for the preceding 12 month period. On October 29, 1996, a CFR was held with King concerning her attendance problem. At the CFR King received a reasonable directive from her supervisor to improve her attendance. King failed to follow this directive. In January 1997, King was removed from her assigned placement and placed on sub-status by her supervisor because King had become unreliable at her work site due to her continued unauthorized absences. Sub-status refers to a pool of aides who substitute as needed. From January 4, 1996, to February 10, 1997, King accumulated the equivalent of 47.5 days of unauthorized absences. On February 10, 1997, a CFR was held with King regarding her attendance problems. King was again directed to improve her attendance. From March 4, 1996, to April 15, 1997, King had accumulated the equivalent of 44 days of unauthorized absences. On May 27, 1997, a CFR was held with King regarding her continued attendance problem. King's continual unauthorized absences adversely impacted her work site because her coworkers were compelled to perform King's job duties. King's unauthorized absences also adversely affected the quality of transportation being provided to the students who ride the buses to which bus aides are assigned. These students have special needs that require the presence of an aide who can properly attend to those needs. Without a bus aide, there is the potential that the bus driver will be interrupted and distracted by those students. Additionally, when different bus aides appear on the bus, these students may feel uncertain and nervous, which may also unnecessarily distract the bus driver. The Collective Bargaining Agreement between AFSCME and the Board provides: ARTICLE II -- RECOGNITION * * * Section 3. . . .It is understood and agreed that management possesses the sole right, duty, and responsibility for the operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; . . . * * * ARTICLE V --DEFINITIONS * * * Section 27. Unauthorized Absence -- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accumulated sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there are extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. * * * ARTICLE XI -- DISCIPLINARY ACTION Section 4. Types of Separation Dissolution of the employment relation between a permanent unit member and the Board may occur in any of four distinct types of separation. * * * Excessive Absenteeism/Abandonment of Position -- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. . . . Disciplinary -- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. On July 23, 1997, the Board suspended King and initiated action to dismiss her from employment with the Dade County Public Schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining King's suspension without pay and dismissing her from her position with Petitioner as a school bus aide. DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998.
The Issue Whether Kennie W. McKay should be deemed to have abandoned his position and to have resigned from the Career Service on account of his absence from work on March 10, 13, 14, and 15, 1987?
Findings Of Fact Some 18 years ago, when petitioner Kennie W. McKay began working at the Dozier School in Marianna, he received a copy of the employee handbook the Department of Health and Rehabilitative Services (HRS) published at the time. A more recent edition, dated June 1, 1986, provides, in part: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness, injury, exposure to a contagious disease, or the illness or injury of a member of your immediate family. Your supervisor should also be given an estimate of the length of the absence. Medical certification may be requested. Respondent's Exhibit No. 3, p. 19. It was not clear from the evidence either that this language appeared in the edition Mr. McKay was furnished when he began work, or that he had ever seen the edition which came into evidence without objection. On June 1, 1983, the Dozier School adopted "POLICY AND PROCEDURE #:035" requiring advance approval of leave, except when "illness or a bona fide emergency" occasions the absence. In that event, the policy specifies that the employee must contact his/her supervisor as soon as possible. If he/she is unable to contact his/her immediate supervisor, the employee must contact the next higher level supervisor or someone in his/her normal chain of command. Leaving messages with the switchboard, coworkers, or other uninvolved staff will not be considered adequate notice. The employee is to notify his/her supervisor and only in situations where the employee is unable to contact the supervisor himself/herself will a call/contact from another person be acceptable. * * * (6) Employees displaying a pattern of unplanned absences may be suspected of abusing their leave privileges and may be subject to appropriate corrective action in accordance with HRSP 60-1 State Personnel Rules (Chapter 22A-8 and HRSR 60-51). Respondent's Exhibit No. 5, pp. 1 and 2. HRS has not promulgated this "policy and procedure" as an administrative rule. Direct evidence did not establish to what extent, if at all, petitioner McKay was aware of its existence or its provisions. But his efforts to reach the man he thought to be his immediate supervisor, James R. Kersey, suggest he believed he was required to try to do so. In his letter of February 23, 1987, the Dozier School's superintendent, Roy C. McKay, no relation to petitioner, advised petitioner McKay that Mr. Kersey would become his immediate supervisor upon petitioner's demotion from carpenter to house parent. In part, the letter stated: This is official notification that you are being demoted from Carpenter, position number 01082, to Houseparent, position number 01188. You are to report to Friendship House on the 10:00 p.m. to 6:00 a.m. shift, effective Friday, February 27, 1987, or the first day you return back to work. 1/ Your immediate supervisor will be Mr. James Kersey, Houseparent Supervisor I; and your days off will be Wednesday and Thursday. Respondent's Exhibit No. 1. Like Mr. Kersey, Mr. James Pyles and Mr. Jethro Pittman were house parent supervisors I assigned to Friendship House. Each supervised a different shift. Houseparent supervisors I reported to Norman Harris, who reported to assistant superintendent Pate, who reported to superintendent McKay. On every shift, an administrative duty officer has campus-wide responsibility. The administrative duty officer is also in the chain of command. Petitioner McKay did not learn until after he was told he no longer had a job that Mr. Harris was to be in the chain of command, because he did not see Mr. Harris' memorandum of March 10, 1987, until after March 16, 1987. In this memorandum, Mr. Harris advised: YOUR IMMEDIATE SUPERVISOR WILL BE JAMES PYLES, HOUSEPARENT SUPERVISOR I. YOUR NEXT HIGHER SUPERVISOR BILL BE ME, MR. NORMAN HARRIS. Respondent's Exhibit No. 8. Written communications addressed to petitioner McKay dated on and after March 10, 1987, were placed in "his box," but Superintendent McKay was aware that petitioner McKay did not see them on or before March 16, 1987. Before the superintendent's letter of February 23, 1987, gave "official notice" of the demotion, the two Messrs. McKay and others met in the Dozier School's conference room, on February 20, 1987. Petitioner McKay told those present that he had a doctor's appointment in Columbus, Georgia on March 10, 1987. As the superintendent understood it, the doctor had earlier warned against petitioner's overexerting himself, even against his walking too far. Everybody knew he was on leave on account of his medical condition at the time of the conference; he was, in fact, demoted because he was not physically able to discharge the duties of a carpenter. Evidently because he told the superintendent that he had a "sick slip through the ninth," the superintendent directed him to report on the tenth. Whoever drew the work schedule put him down as beginning his new assignment on March 9, 1987. As it happened, somebody in the doctor's office in Columbus called petitioner McKay's wife on March 9, 1987, and rescheduled the appointment for March 11, 1987. Deciding not to report for work before seeing the doctor, Kennie McKay telephoned the Dozier School on the tenth to let them know. Twice he reached Mr. Bridges, who was working the day shift as a house parent at Friendship House. He told Mr. Bridges he was not coming in to work that night. He asked each time to speak to Mr. Kersey. Each time Mr. Bridges told him Mr. Kersey was not there. Although Friendship House is the most secure cottage at the Dozier School and the locus of the school's "intensive supervision program," which is designed to calm boys down who are "in an uproar," the work on the night shift is not physically demanding. The boys are supposed to be asleep, and a house parent can call for reinforcements if problems arise. The houseparent can lock himself in a "crime cage" out of reach of the inmates, and could do his duty, which is mainly to observe, on crutches, if necessary. Nevertheless, when petitioner McKay visited the doctor in Columbus on March 11, 1987, he obtained a form from the doctor's office stating "out of work until next visit in 3 wks." Respondent's Exhibit No. 12. After he reached Marianna, he telephoned the Dozier School at 7:46 p.m. that evening. Charles Gardner, Jr., who was working as a house parent at Opportunity Cottage, took the telephone call. Mr. McKay told him he could not come to work that night, that he had been to see a doctor, that he had a doctor's excuse, and that he needed to talk to a night supervisor. While they were talking, Luther L. Spurlock, a house parent supervisor II in charge of a cluster that did not include Friendship House, entered the room, and took the phone from Mr. Gardner, who handed it to him. Petitioner McKay told Mr. Spurlock, "I'll be in tomorrow with a doctor's slip for Danny." After the phone call was over, Mr. Spurlock said to Mr. Gardner, "I'm not McKay's supervisor," or words to that effect. A form filled out toward the end of the shift stated: Kenny McKay called and said that he would be at the school tomorrow with a doctor slip to give Mr. Pate. Everything went well tonight no major problems. Respondent's Exhibit No. 10. Mr. Spurlock did not tell the petitioner that he ought to notify anybody else about his continuing absence. Kennie McKay had not been scheduled to work on March 11, 1987, in any event. His next scheduled work day was March 13, 1987. Respondent's Exhibit No. 7. On March 13, 1987, he telephoned the superintendent's office but, when told he was in a meeting, asked to speak to Bruce Gambill, Dozier School's business manager , instead. Mr. Gambill answers directly to the superintendent. He told Mr. Gambill "that he had been to the doctor and had a sick slip to be out of work." Respondent's Exhibit No. 11. Mr. Gambill asked him to bring a copy of the slip to the business office for Workers Compensation purposes ... [and] instructed Mr. McKay to contact his supervisor concerning the sick slip and being out of work. [Petitioner] said he had tried to call, but there was no answer. [Mr. Gambill] told him he needed to let his supervisor know about the sick slip. Respondent's Exhibit No. 11. Petitioner had telephoned that morning at 10:24 from Marianna, Petitioner's Exhibit No. 1, but he had not reached Mr. Pittman, the supervisor, who testified he might have been on an errand then. Whether Petitioner tried again to reach a supervisor after speaking to Mr. Gambill is not clear. James Pyles, the man who, although petitioner did not know it at the time, became the latter's supervisor on March 10, 1987, asked superintendent Roy McKay's permission to use a state car about three o'clock that afternoon to find out if Kennie McKay was going to come to work. Mr. Pyles drove to Dothan, Alabama, where he found petitioner walking around without crutches in an establishment known as Shag's. He did not tell petitioner that he had been made his supervisor or suggest that, since he did not seem to need crutches, petitioner come to work. The following night, as well, Mr. Pyles saw Mr. McKay getting around without crutches. On that occasion, too, Mr. Pyles refrained from any discussion relating to work at Dozier School. When Kennie W. McKay brought the doctor's slip, Respondent's Exhibit No. 11, to Dozier School on March 17, 1987, he was informed he no longer had a job.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration rule that Kennie W. McKay has not abandoned his position with the Department of Health and Rehabilitative Services, and has never lost his membership in the Career Service. DONE AND ENTERED this 28th day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II 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, 1987.
The Issue Whether Michael J. Rodgers abandoned his position and resigned from the career service within the contemplation of Rule 22A-7.010(2), Florida Administrative Code?
Findings Of Fact V. G. "Jerry" Collins, a DOT maintenance engineer for 14 years, was Michael Rodgers' supervisor in June of 1987, when DOT employed the latter as a highway maintenance technician II at its Perry yard. While recovering from a job-related injury, Mr. Rodgers had been assigned to pump gas there. After Mr. Rodgers began work for DOT, he was furnished a copy of DOT's employee handbook. DOT's Exhibit No. 6. On page 12, the handbook states: If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time. This will allow the Department to effectively schedule your work assignments on a daily basis. When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed. If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work. If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time. If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence. Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given. DOT's Exhibit No. 4. On page 43, the handbook discusses the abandonment rule: JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. DOT's Exhibit No. 3. Mr. Rodgers signed a form acknowledging receipt of the handbook on December 16, 1983. DOT's Exhibit No. 5. At about four on the afternoon of Monday, June 22, 1987, Mr. Collins asked Mr. Rodgers when his next doctor's appointment was. Mr. Rodgers replied, "I need to see him tomorrow." (T. 35) He did not "state that it would be for illness" (T. 53) or specify the reason for the visit. (T. 74) Believing Mr. Rodgers had an appointment to see his doctor the following day, Mr. Collins said, "That's fine, when you come back to work bring a doctor's certificate." (T. 17) But the leave Mr. Collins authorized Mr. Rodgers to take was "not a leave of absence for illness." (T. 53) On Tuesday, June 23, 1987, A DOT employee marked Mr. Rodgers absent for the day on "authorized leave" (T. 18) without pay. Mr. Rodgers, who lives about 60 miles from Perry, travelled to Dr. Hauser's office in Old Town on Tuesday morning "to sit down and talk with him about some information [he] needed," (T. 36-37) concerning an automobile accident's forensic sequelae. He was told to return later that day, because the doctor could not see him immediately. Although he returned at noon, and on four different occasions that afternoon, the doctor gave other patients priority. Mr. Rodgers then telephoned DOT's Perry yard, and "gave the secretary . . . the message that [he] was unable to see the doctor and . . . would still need to be off . . . to attempt to see him again on Wednesday the 24th." (T. 24, 38) When Mr. Collins learned of Mr. Rodgers' conversation with the secretary, he asked William S. Clark to telephone Dr. Hauser's office, at the Tri-County Medical Center. Betty in Dr. Hauser's office told Mr. Clark that, although Mr. Rodgers had in fact visited the office, he had no appointment. On Wednesday morning, DOT's attendance records were marked to reflect that Mr. Rodgers was absent on authorized leave without pay, although Mr. Collins testified that leave never was authorized for that day. (T. 19, 80) Later Wednesday, Mr. Collins, under the impression that Mr. Rodgers "had lied about going to the doctor for a doctor's appointment," (T. 82) ordered that the attendance records for Tuesday and Wednesday be altered to show that Mr. Rodgers' leave was not authorized on those days. (T. 19, 80, 82) On the afternoon of Wednesday the 24th, Mr. Rodgers, who had inquired at the office about Dr. Hauser's availability on two occasions earlier in the day, saw Dr. Hauser, discussed effects of the automobile accident, and made an appointment for the following day to have his back examined. (T. 38) On Thursday, the 25th, he kept the appointment, and obtained a slip of paper attesting the fact. But, in Mr. Collins' view, Mr. Rodgers' employment had ended before he saw the doctor that day: "He was considered to have abandoned his position by 9:00 a.m. Thursday morning since he had not called in [after Tuesday afternoon.]" (T. 79) When Mr. Rodgers returned to work on Friday, June 26, 1987, Mr. Collins read, then returned, the note from the doctor, informed Mr. Rodgers of the changes in the attendance records, and advised him that his employment had terminated.
Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate Michael J. Rodgers as a highway maintenance technician II at its Perry yard, with back pay since June 26, 1987. DONE and ENTERED this 27th day of May, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 27th day of May, 1988. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Aaron A. Green, Esquire P. O. Box 1265 Gainesville, Florida 32602 Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Petitioner should be treated as having abandoned his employment with the Respondent?
Findings Of Fact The Petitioner was a Career Service employee with the Respondent. The Petitioner received a copy of an Employee Handbook upon his employment with the Respondent. The Handbook informed the Petitioner of the rules governing absences from work, including the rule providing that an employee will be treated as having abandoned his position if absent for 3 days without authorized leave. The Petitioner was employed as an Investigator in the Child Support Enforcement Office of the Respondent in Inverness, Florida. The Petitioner's immediate supervisor was Shirley Barker. In June, 1986, the Petitioner suffered a seizure. The Petitioner subsequently underwent surgery for the removal of a brain tumor in June, 1986. The Petitioner returned to work following his surgery on approximately September 15, 1986. Ms. Barker determined that the Petitioner's performance was not up to standard and discussed the need for additional leave with the Petitioner. The Petitioner's physician agreed that it would be beneficial for the Petitioner to have additional time to recover from his surgery and recommended an additional six months leave of absence. The Petitioner signed a Report of Personnel Action indicating that he was going to take leave without pay. The Petitioner's leave was effective October 13, 1986, "for a period of 6 months with return pending medical reevaluation." This leave of absence ended on April 13, 1987. During the Petitioner's 6 months leave of absence he was given a monthly medical evaluation by his physician. In December, 1986, the Petitioner met with Ms. Barker and told her that he planned on returning to his position with the Respondent when his physician approved his return. The Petitioner did not, however, tell Ms. Barker when he would return or request an extension of his 6 months leave of absence. In March, 1987, the Petitioner met with Barbara Jordan, a supervisor in the Child Support Enforcement Office of the Respondent. This was the Petitioner's only meeting during 1987 with any employee of the Respondent. During this meeting the Petitioner did not indicate when he would return to work or request an extension of his 6 months leave of absence. By letter dated April 16, 1987, Herbert R. Hildreth, Sr., Human Services Program Manager, and Ms. Barker's supervisor, informed the Petitioner that his 6 months leave of absence had expired. The Petitioner was also informed that he should advise the Respondent by April 26, 1987, of his intentions concerning his employment with the Respondent. Mr. Hildreth's letter of April 16, 1987, was received by the Respondent on April 21, 1987. The Petitioner did not respond to Mr. Hildreth's letter of April 16, 1987, prior to April 26, 1987. By letter dated April 30, 1987, Judith Mesot, Deputy District Administrator of the Respondent, informed the Petitioner that the Respondent considered the Petitioner to have abandoned his Career Service position with the Respondent because the Petitioner had been on unauthorized leave since April 10, 1987. By letter dated May 27, 1987, the Petitioner informed the Respondent that his physician had informed him during a May 20, 1987, appointment that he could return to work on a part-time basis. At no time between October 13, 1986, and April 13, 1987, did the Petitioner inform the Respondent when he intended to return to work or request an extension of his 6 months leave of absence. The first time that the Petitioner informed the Respondent that he was ready to return to work was in his May 27, 1987, letter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, John Blackford, has abandoned his position with the Respondent, the Department of Health and Rehabilitative Services. DONE AND ORDERED this 15th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 15th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2617 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 and 4 To the extent that these proposed facts were proved by the evidence, see finding of fact number 3. 5 and 6 4. 7 5. 8 Hereby accepted. 9 and 10 6. 11 7. 12 Although the Petitioner testified that he met with Ms. Barker within one day after his monthly examina- tions, the weight of the evidence failed to support this testimony. See 8. Even if the Petitioner had met with Ms. Barker as often as the Petitioner indicated, the Petitioner still did not return to work or obtain approval of his absence after April 13, 1987. 13 and 14 To the extent that these proposed facts were proved by the evidence and are relevant, see finding of fact number 9. Most of these proposed findings of fact are not relevant, however. 15 10 and 12. 16 13. Respondent's Proposed Findings of Fact 1 1. 2 6. 3 10 and 11. 4 Hereby accepted. 5 11. 6 12. 7 13. COPIES FURNISHED: Don Royston, Esquire Department of Health and Rehabilitative Services District III Building H 1000 Northeast 16th Avenue Gainesville, Florida 32609 John Blackford 3199 East Quail Court Inverness, Florida 32652 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Wilson Yawn, Maintenance Engineer, Chipley, Florida. On April 15, 1985, Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment. Petitioner was absent from work without authorized leave on August 17, 18, 19, and 20, 1987. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent. Petitioner was formally advised by certified letter dated August 21, 1987 that Respondent considered him to have abandoned his job and to have resigned from the Career Service.
The Issue Whether the Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?
Findings Of Fact Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B): JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A). In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987. Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be treated as having abandoned his position with the Department because of his unauthorized absence. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department. The Department received a letter on November 25, 1987, requesting a formal administrative hearing. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of Administration concluding that Kenneth M. Watson abandoned his career service position with the Department. DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 16th day of June, 1989. APPENDIX Case Number 88-0798 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2-3 4. 4-5 5. 6 7. 7 11. 8 13. 9 11-15. 10 16. Hereby accepted. See 17. 13 13. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989. Hereby accepted. 16 18. 17-18 2. 19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-6. 2 7. 3 9. 4 11. 5 12. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16. Hereby accepted. Not supported by the weight of the evidence or irrelevant in this de novo proceeding. Not supported by the weight of the evidence or argument. See 20. Not supported by the weight of the evidence. Hereby accepted. Irrelevant in this de novo proceeding. COPIES FURNISHED: Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue presented for decision herein is whether or not Petitioner was unlawfully discriminated against, by being separated from her employment with Respondent, because she sustained a back injury which Respondent perceived as a potential problem and whether she was the subject of disparate treatment as relates to the treatment Respondent afforded its other employees.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Joyce A. Dykes, was employed by Respondent, Quincy Telephone Company, for a period of approximately thirteen (13) years where she served as a service representative/cashier and an operator. Petitioner was laid off on May 27, 1983 based upon a company-wide employment reduction mandated by economic factors. Prior to her employment with Respondent, Petitioner was formerly employed as a bookkeeper with Higdon Furniture Company for approximately 17 years. Petitioner's first date of employment with Respondent was September 28, 1970. Approximately 7 years later, i.e., on November 21, 1977, Petitioner, during the course of her duties as an operator, left her work area and, upon return, sat down in a chair which she described as "wobbly." Petitioner fell backwards from the chair and "landed on her buttocks." Ann Kirkland, a fellow employee, was summoned to the scene of the incident and took Petitioner to the hospital for an examination. Petitioner stayed in the hospital approximately 3 days and returned to work. Since she returned to work, Petitioner has not requested any special treatment such as a convenient parking space, less strenuous duties or other more favorable treatment based on her "back problem." Petitioner expressed that she was leery of complaining to Respondent, and/or its agents, based on her back problem and therefore refused to make noises about that problem. During the summer of 1981, Petitioner experienced a traumatic incident involving the drowning of her son at the pool of a local motel. Petitioner's fellow employees, including Bladis Crow, an employee of Respondent during December, 1980 to October, 1981, and who was in overall charge of Petitioner, attempted to console her during her period of mourning by suggesting that she return to work where she would be in the company of fellow employees who could console her during this low period in her life. During the period of 1980-81 when Petitioner was under the supervision of supervisor Crow, she was "cross-trained" such that she could fill in for other employees during periods of other employee absences including vacations and other leaves. Petitioner, like other employees who were "cross-trained" did not like the idea of learning new tasks and being assigned to perform other duties temporarily. Supervisor Crow perceived Petitioner to be a valuable employee and considered that she got along well with other employees. One other employee, Eunice Hancock, a cashier and service representative, recalled Petitioner bringing in a heating pad and, on occasion, voicing complaints about a backache. During her period of employment with Respondent, Petitioner was perceived as a divisive employee in the minds of Respondent's managerial employees. (Testimony of supervisor Geary 1/; Lila D. Corbin, president and general manager; and Ann Kirkland, a former supervisor and business representative). Petitioner was viewed as an employee with a morale problem and often appeared unhappy and was a source of constant bickering between other employees. Petitioner was reprimanded by Bill Geary, who served as Respondent's supervisor for approximately one year from mid-1982 to the time of her layoff on May 26, 1983. Supervisor Geary interviewed Petitioner respecting a written reprimand he issued her on January 21, 1983. All of the items listed on that reprimand were discussed with Petitioner. Among the items discussed were Petitioner's fellow employees' complaints about her activities including moodiness, low morale and other problems dealing with the quantity and quality of Petitioner's work. Throughout the discussions with supervisor Geary, Petitioner repeatedly attempted to digress from the purpose of her interview and attempted to compare her work with that of other employees. From the time that Petitioner was employed by Respondent, Respondent has undergone three changes of ownership and is presently owned by Teledata Systems (TDS). With the change in ownership by TDS, a number of changes were instituted, some of which stem from the deregulation of the telephone industry. Upon becoming the owner, TDS immediately commissioned an overall forecast study of the operations in Quincy. Following that study, TDS determined that cutbacks in operating costs were necessary to insure profitability. The decision was therefore made to reduce employees and, in some instances, to reclassify positions or redefine the duties of its employees. In keeping with that goal, TDS, through its management, issued a directive to implement a work force reduction during May of 1983. Ms. Corbin, then the president and general manager, first learned of TDS' plans to institute the work force reduction during March of 1983. The plan was divulged to other supervisory and management employees during the week of approximately May 22, 1983. Pursuant to the company-wide reduction plan, TDS determined that of its complement of 83 employees when it took over during January of 1983, the work force needed to be reduced by approximately 11 employees. When the policy directive was issued to managers and supervisors, they were told to rid themselves of employees who did not meet certain criteria deemed critical by management such as the skills of each employee; the difficulty in replacing certain skilled employees and in training replacements; customer relationship; productivity level; ability to learn new skills; ability for overtime work, if and when needed; attendance; salary level; ability to work as a member of a new organizational structure and to be a team player; and the overall attitude toward company, customer and fellow employees. (Respondent's Exhibit 1) Those employees considered as fitting within the category of employees needing to be laid off were employees who came in late and left early; were repeatedly absent; performed sloppy work; wasted time and material; engaged in personal telephoning; stretched breaks and lunch hours; spent too much time in the washrooms and talked to other employees about personal activities; rudeness that causes customer irritation and costly work errors. (Respondent's Exhibit 1) During the time when the work force reduction was implemented, Petitioner was on vacation. Prior to that time, she had been afforded training as a keypunch operator. Of the 3 employees who were given keypunch training with Petitioner, Petitioner was tested as having the least leadership skills of the three. When the work force reduction was implemented, 11 employees were laid off. Presently that number has increased from 11 to 19. The only area where there has been one (1) employee hired is an employee trained to operate the Respondent's "complex" PBX and PABX systems. It is true that there were employees with less seniority than Petitioner who were retained, however seniority (length of service) was considered to be only a factor if it is also indicative of the experience gained and versatility (of the employee). Respondent considered that there were other factors more paramount which would influence the retention decision. (Respondent's Exhibit 1, paragraph 2) Respecting Respondent's claim that the Respondent perceived her back injury as a handicap or a potential problem, the evidence fails to sustain her claim in that regard. What the facts show is that while Petitioner did sustain an on-the-job injury during 1977, evidence fails to support Petitioner's claim that the injury was perceived the Respondent as a problem it needed to rid itself of or that it was a physical handicap which could or would be the source of a problem for Respondent. Noteworthy is the fact that Petitioner never requested any preferential treatment in her job assignments based on this claimed handicap other than one isolated incident wherein she spoke to her then- supervisor Geary at the time that she was asked if she desired training as a keypunch operator. For all of these reasons and the wide range of layoffs implemented by this Respondent during May of 1983, Petitioner's claim does not appear meritorious but was rather necessitated by changes in the telephone industry which continues today to have an economic impact on the Respondent. Respondent developed nondiscriminatory criteria which were given to all management types to use in determining what employees should be retained. The criteria was not designed to weed out or eliminate troublesome employees but, rather, to determine those employees to be retained and the criteria which guided that retention decision. That decision appeared to have been based solely on economic and business decisions of the Respondent company as a whole. 2/ Petitioner failed to establish that she was the subject of unlawful disparate treatment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. RECOMMENDED this 25th day of March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of March, 1985.
