06-000605 Gregory B. Taylor vs. St. Johns River Water Management District Status: Closed Recommended Order on Tuesday, August 29, 2006.

Summary: Petitioner violated Respondent`s leave and attendance policy and failed to establish that Respondent had not fully informed him of its leave reporting policy. Recommend that suspension stand.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY B. TAYLOR , )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 0605

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing, as noticed, before

P. Michael Ruff, duly - designated Administrative Law Judge of the

Division of Administrative Hearings. The hearing was conducted

in Palatka , Florida , on May 11, 2006 . The appearances were as

follows :

APPEARANCES

For Petitioner: Gregory B. Taylor, pro se

Post Office Box 1514

Palatka, Florida 32178 - 1514

For Respondent: William Abrams, Esquire

St. Johns River Water Management

District

4049 Reid Street

Palatka, Flo rida 32177 - 2529

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether

the Petitioner, Gregory B. Taylor, violated the attendance

policy of the St. Johns River Water Management District, the

Respondent (District) thereby sub jecting himself to a one day

suspension.

PRELIMINARY STATEMENT

This cause was initiated upon the District providing the

Petitioner a letter notice of December 27, 2005, whereby he was

informed he was suspended for one - day without pay for violating

the attendance and leave policy of the Distr ict . The Petitioner

was thus informed that he had a right to request a formal

hearing in accordance with Chapter 120, Florida Statutes . H e

filed a request for an Administrative Hearing. The matter was

referred to the Division of Administrative Hearings (Division)

and ultimately to the undersigned Administrative Law Judge.

The Petitioner has challenged the suspension without pay as

unfair. The Petitioner seeks an order removing the disciplinary

action from his pe rsonnel file. The District maintains that the

suspension was based on three incidents of absen ce without

authorized leave , was appropriate and was within the permissible

range of discretionary disciplinary actions under the District's

regular policy , of w hich all employees have been informed.

The cause came on for hearing as noticed. The Petitioner

testified on his own behalf at the hearing and offered one

exhibit which , was not admitted into evidence and one exhibit

marked as Petitioner's Exhibit One , w hich was admitted into

evidence without objection. The District presented the

testimony of witnesses Robin Hudson, the Director of the Office

of Human Resources; Robert L. Green, Jr., the Network and

Systems Coordinator of the Division of Computer Informa tion

Services (CIS) ; and Martin T. Barnes, the Director of the

Division of Computer Information Services. The District offered

10 Exhibits which were admitted into evidence without objection

as Respondent's Exhibits 1 through 10.

Upon conclusion of the h earing a transcript was ordered by

the parties and they requested and received an opportunity to

file proposed recommended orders . The Proposed Recommended

Orders ha ve been considered in the rendition of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner was employed by the District as a

customer service technician II. He has worked for the District

for seven years and is assigned to the Division of CIS. He is

supervised by Robert Green, and Robert Green's supervisor , the

Division Director , Ma rtin Barnes.

2. The District has policies that govern work place

conduct including attendance and leave. The District routinely

informs employees of these policies that govern their workplace

conduct through orientation meetings and discussions with

su pervisors. The policies are posted on the District's internet

website and the Petitioner is aware of where to find these

policies , by his own admission.

3 . The attendance policy provides that employees must be

present on their job for the scheduled hour s and the established

workday and workweek unless absence from duty has been approved

by the appropriate supervisor.

4 . Mr. Green testified that he has reviewed the District's

attendance policies with the Petitioner. Concerning annual

leave, the attenda nce policy provides that "except in

emerge n c ies , annual leave must have supervisory approval be for e

being taken." District policy as to sick leave provides that

sick leave shall only be used with prior supervisory approval.

5 . The District classifies ab sences as either planned or

unplanned. Planned absences are those that are approved in

advance , and unplanned are those for which prior approval has

not been obtained.

6 . Each District work unit, including CIS, establishes

practices to implement the mea ns of obtaining prior approval for

planned absences and reporting of unplanned absences. The

policy for CIS employee s for reporting unplanned absences is to

contact the supervisor . If the employee cannot contact that

supervisor then the employee is to co ntact the Division

Director, Assistant Department Director, or Department Director,

in that order of priority.

7 . Each D istrict work unit may impose specific

requirements with regard to the reporting of unplanned absences

for the purposes of correcting b ehavior. The District written

attendance policy provides that:

If a department/office director determines

that an employee is excessive ly absent based

on a pattern of absence s , such as regular

absence on the day proceeding or following

the employee ' s regu lar days off; . . . [or]

continual use of sick leave as it is accrued

. . .; the department/office director may

take action to control such excessive

absences. Such action may be taken only

after the absences have been discussed with

the employee and the plan to control the

absences ha s been reviewed by the office of

human resources.

8 . In December 2004, after several discussions and

meetings with the Petitioner and after consulting with the

District's office of Human Resources, Robert Green gave the

Pe titioner a memorandum regarding his attendance. The

memorandum restated the attendance policy and, in order to

control the Petitioner's excessive absences and failure to

contact his supervisors regarding unplanned absences, the

memorandum instructed the Petitioner to notify Mr. Green, or if

Mr. Green was not available, the three other staff members at

progressively higher supervisory levels, mentioned above. T he

memorandum explicitly instructed the Petitioner to contact the

supervisors by phone.

9 . A l ittle more than a month later, at the end of January

2005, Mr. Green conducted the Petitioner's annual performance

evaluation. The "additional comments" section of that

evaluation, before the space for the supervisor ' s and employee ' s

signatures includes t he following statement:

[T]hroughout this evaluation period I have

counseled [Petitioner] on his tardiness

during his scheduled working hours.

10 . Mr. Green testified that, in addition to the statement

above, he counseled the Petitioner during the evalu ation

regarding the Petitioner's tardiness and failure to notify his

supervisors when he was out and reiterated that the notification

was to be made by phone.

11 . In February 2005, less than two weeks after the

evaluation, and after additional unplanned absences and

tardiness following the December 2004 memorandum, Mr. Green

provided the Petitioner with a memorandum related to the

Petitioner's tardiness and unplanned absences. This memorandum

noted that an excessive number of unplanned absences and

tardi ness had become apparent and set forth 22 unplanned

absences - - the majority of which immediately preceded or followed

regular scheduled days off.

12 . In addition, the memorandum reiterated that the

Petitioner's habitual tardiness was unacceptable and prov ided

examples. The memo concluded with the following paragraph,

which re - stated the plan to control the Petitioner's excessive

absences:

You are expected to adhere to your regular

work schedule. If you cannot, effective

February 14th, at the beginning of your

workday, you will notify me or Martin

Barnes, Division Director of Computer

Infor ma tion Systems by phone when you will

be absent or more than seven minutes late to

work. Voice mail or e - mail is not an

appropriate notification. Continued

tardiness a nd unplanned absences will lead

to disciplinary action .

13 . The Petitioner testified that he received the

instruction, both in writing and orally, to call Mr. Green or

Mr. Barnes. On November 4 and 7, 2005, a Friday and a Monday,

the Petitioner was sic k. On both days he failed to contact

either Mr. Green or Mr. Barnes by phone.

14 . The Petitioner testified that upon his return to work,

Mr. Green told him that he , Green, "appreciated" the fact that

the Petitioner called the help desk when he was sic k , and the

Petitioner asserts that meant that Mr. Green approved of calling

the help desk rather than Mr. Green.

15 . Mr. Green testified that he did say that he

appreciated that the Petitioner had at least called in and then

added that he made that state ment after he stated that it was

inappropriate to call someone other than him, and before telling

the Petitioner (again) that notification should be made to Mr.

Green directly.

16 . Mr. Green never communicated to the Petitioner, in a

memo or otherwise, t hat the requirement that the Petitioner

called his supervisors to report or request unplanned absences

no longer applied to the Petitioner.

17 . Mr. Green established that the requirement that the

Petitioner call in is consistently interpreted and applied

throughout the CIS management.

18 . The Petitioner testified that he called in sick on

November 4 and November 7 at 7:00 a.m. so that he could

immediately return to resting.

19 . There was no testimony that the Petitioner called in

later on either day a nd Mr. Green testified that neither he n or

any other supervisor was contacted by the Petitioner.

20 . The Petitioner testified that he had, previous to

November 4, 2005, attempted to call Mr. Green early in the

morning and had been unsuccessful, implying that he did not call

either Mr. Green or Mr. Barnes because they are not available by

phone at 7:00 a.m. in the morning.

21 . Mr. Green attempted to call the Petitioner back when

the Petitioner had been unable to reach him by phone in the

early morning ho urs.

22 . Mr. Green is required to always have his cell phone

on . H e told the Petitioner that he was available by cell phone.

Martin Barnes, Mr. Green's supervisor, confirmed that he

requires Mr. Green to keep his cell phone on and with him at all

times . A t 7:00 a.m. Mr. Green is on his way to work and

available at that time. The Petitioner admitted that he had

never called Mr. Barnes 's cell phone. Mr. Barnes testified that

his office phone is forwarded to his cell phone so that he is

available almost 24 hours a day.

23 . The Petitioner's normal work day concludes at 4:00

p.m. On November 22, 2005, the Petitioner sent an e - mail to a

group of recipients, "IR Management," that included Martin

Barnes, the CIS Division Director , and Kevin Brown, Mr. Barn es

supervisor, requesting authorization to leave work early. The

Petitioner made his request at 2:17 p.m. and left work at 3:15

p.m.

24 . In between the time that the Petitioner made his

request and the time he left, the Petitioner was away from his

desk and unavailable by e - mail.

25 . Robert Green was not working at the District that day.

Accordingly, the next person to whom the Petitioner was directed

to seek approval for leave was Martin Barnes.

26 . Shortly after the Petitioner sent the e - mail, Kev in

Brown replied by e - mail. Rather than grant permission, the body

of the message stated: " Please address this with Martin. "

Mr. Brown's instruction to contact Mr. Barnes was given even

though the e - mail Brown received was also clearly addressed to

other members of "IR Management , " including Mr. Barnes.

27 . The Petitioner did not call Mr. Barnes by phone.

Rather, the Petitioner stated , "I knew in my mind that I had

already contacted Martin Barnes concerning this and that I had

not been notified by anyo ne in management saying this would be

unacceptable."

28 . The Petitioner's unilateral use of a negative notice

procedure directly conflicts with specific instruction he

received to contact supervisors by phone. It also is not in

compliance with the instr uction, provided after the Petitioner

had already e - mailed Mr. Barnes, that he address leaving work

early with Mr. Barnes.

29 . Although the Petitioner referred to other e - mails that

purportedly evidenced use of this procedure by the Petitioner

and other employees, he failed to produce any such e - mails or

any corroborating evidence.

30 . The testimony of Ms. Hudson and Mr. Green was that

phoning was the only acceptable method of communicating for the

Petitioner.

31 . Further, the phone requirement was th e result of a

plan to control the Petitioner's tardiness and excessive

absences, not directed toward the issue of other employees '

attendance.

32 . The District's disciplinary action policy describes

"absence without authorized leave" as:

Failure to obtai n prior approval for absence

from work, except in the case of an

emergency; failure to notify the proper

supervisor in a timely or appropriate manner

of intended absence from work; or obtaining

leave based on a misrepresentation.

33 . On December 8, 2005 , the Petitioner was provided with

a letter from the District's executive director that informed

him that the District intended to suspend him for one day

without pay for being absent without leave.

34 . The letter, dated December 7, 2005, indicated that the

intended suspension was based on the District's findings that:

(1) t he Petitioner failed to properly report his absence from

work on two consecutive work days (November 4 and November 7)

and that (2) the Petitioner failed to properly secure

authorizat ion to leave work early (on November 22).

35 . The District's director of human resources established

that either of these two bas e s would serve independently as a

basis for the disciplinary action taken.

36. The Petitioner was notified in the letter t hat he

could request a pre - determination conference for the purpose of

presenting information to the executive office that would

support a decision not to suspend the Petitioner , before a final

decision was made regarding the intended disciplinary action.

The Petitioner did not request a pre - determination conference.

On December 27, 2005, the Petitioner was provided with the

second letter from the District's executive director informing

the Petitioner that, given the facts recited in the December 7,

letter and given that the Petitioner had not taken the

opportunity to be heard as to those facts, that he would be

suspended for one day.

37 . That letter also stated that the Petitioner had the

right to appeal the executive director's decision through the

admi nistrative hearing process pursuant to Chapter 120, Florida

Statutes.

38 . Under the District's disciplinary action policy, the

failure to properly notify the appropriate supervisor of an

intended absence, in this case either because the employee is

sick or seeks approval for leaving his work station early,

constitutes an absence without authorize d leave.

39 . The appropriate discipline level for being absent

without leave ranges from reprimand to dismissal. The District

has terminated employees for repe ated occurrences of absence

without leave.

40 . The District tends to take the least sever e

disciplinary action needed to correct behavior. However, when

an employee ' s behavior does not respond, the severity of the

discipline is progressively increased.

41 . Under District practice, violations of District

policies are considered cumulative. All previous disciplinary

actions, whether for the same or a different violation, are

considered in determining which disciplinary action to impose.

42 . The Petiti oner has a previous reprimand in his

personnel file for insubordination. The Petitioner has also

been counseled by memo, evaluation, and meetings before November

2005 , regarding his lack of adherence to District attendance

policy.

43 . Both the history o f counseling and informal corrective

action for the particular behavior, absence without authorize d

leave, and the previous formal reprimand for an unrelated

violation were considered in determining the appropriate level

of disciplinary action in the case at bar.

44 . When ask ed what remedy he sought the Petitioner at the

hearing stated: "I only ask that the disciplinary action be

removed from my personnel file." The Petitioner did not

identify an applicable exemption from Florida's broad public

records laws or document retention schedules that would support

the removal of an agency's final action from the agency's files.

CONCLUSIONS OF LAW

45 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to thi s

proceeding. §§ 120.569 and 120.59, Fl a. Stat. The District is

a special taxing District charged with managing the state's

water resources and to administer and enforce the provisions of

Chapter 373, Florida Statutes , and rules promulgated thereunder.

Section 373.016, Florida Statutes (2005). The District is an

agency of the State of Florida for purposes of employee

discipline - related disputes such as this one. Grimshaw v. South

Florida Water Management District , 195 F. Supp. 2d 1358, (S.D.

Fla. 2002) .

46 . It has been held in Arnold v. South Florida Water

Management District , 910 So. 2d 431 (Fla. 4th DCA 2005) that an

" at will " employee of the water management district does not

have standing to obtain review of a termination of employment

since that employee does not have a substantial interest in that

employment. See also Toth v. South Florida Water Management

District , 895 So. 2d 482, 483 (Fla. 4th DCA 2005) (an at will

employee is without standing to challenge a demotion and

transfer).

47 . Altho ugh it may appear that a suspension as a less

adverse impact than termination would also not give rise to

standing, the District through its written polices has provided

its employees the standing opportunity to challenge disciplinary

suspension through th e administrative hearing process pursuant

to Chapter 120, Florida Statutes. Therefore on that basis

Petitioner has standing.

48 . The burden of proof herein is on the agency as the

party seeking to establish the affirmative of the issue or , that

is , to i mpose the penalty of suspension. The standard of proof

is by a preponderance of evidence.

49 . The E xecutive D irector of the District has the

"authority to establish an d implement polices and procedures to

manage the District's work force" pursuant to Se ction 373.083,

Florida Statutes, and District policy 79 - 03, Administration of

Governing Board, Section 12. This authority includes both the

setting and enforcing of the standards of conduct.

50 . The Executive Director is accorded wide latitude in

determ ining appropriate disciplinary actions.

[T]he tak ing of more or less sever e action

tha n would be indicated by these guidelines

is within the discretion of the Executive

Director. . . . In determining the

appropriate disciplinary action for such a

violatio n, [he] shall consider the specific

violation, the consequences of the

violation, the circumstances surrounding the

violation, previous disciplinary action the

employee has received for related and

unrelated violations, the time between the

violations, and the overall work record of

the employee.

51 . The Petitioner has not shown any abuse of discretion

in which the District ignored any clear evidence that the

Petitioner has not violated policy. In fact, the Petitioner ,

when provided an opportunity to ex plain or excuse his conduct,

or refute the District's findings, chose not to offer any

evidence or explanation , prior to the disciplinary action being

imposed.

52 . In accordance with the above findings of fact, the

District has established by a preponder ant evidence that the

Petitioner was subject to a requirement that he phone his

supervisor or other supervisors to report or receive approval

when he would not be at his work place as planned.

53 . In accordance with the above findings of fact , the

Distri ct has proved by preponderant evidence that the Petitioner

did not comply with that requirement on three occasion s in

November 2005.

54 . In consideration of those findings of fact , the

District has established that suspending the Petitioner for one

day was a disciplinary action within the Executive Director's

discretion to impose. The District has thus established by

preponderant evidence that the disciplinary action was proper ly

imposed.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses , and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED: That the St . Johns River Water Management

District enter a final order suspend ing the Petitioner from work

for one day without pay.

DONE AND ENTERED this 29th day of August , 200 6 , in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

T he DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August , 200 6 .

COP IES FURNISHED :

Kirby Green, Executive Director

St. Johns River Water Management

District

4049 Reid Street

Palatka, Florida 32177 - 2529

Gregory B. Taylor

Post Office Box 1514

Palatka, Florida 32178 - 1514

William Abrams, Esquire

St. Johns River Water M anagement

District

4049 Reid Street

Palatka, Florida 32177 - 2529

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended O rder should be filed with the agency that

will issue the final order in this case.