Department of Health and Rehabilitative Services v. Marlow, AT-72

• Decision Date: 30 March 1984
• Docket Number: No. AT-72,AT-72
• Citation: 448 So.2d 1106
• Parties: DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Nell G. MARLOW, Appellee.
• Court: Florida District Court of Appeals

Page 1106

448 So.2d 1106

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Nell G. MARLOW, Appellee.

No. AT-72.

District Court of Appeal of Florida First District.

March 30, 1984.

John L. Pearce of Dept. of Health and Rehabilitative Services, Tallahassee, for appellant.

William F. Daniel, P.A., Tallahassee, for appellee.

ERVIN, Chief Judge.

The Department of Health and Rehabilitative Services (HRS) appeals from a final order of the Career Service Commission (Commission), directing a verdict in favor of Marlow and requiring that she be reinstated to her former position of employment with HRS and receive back pay. We affirm in part and reverse in part.

Marlow had been employed as a food stamp supervisor in both Washington and Calhoun Counties until August 16, 1982, when her supervisor, Gill Lowe, informed her that she would begin work that week as a full-time supervisor in the Calhoun County office due to personnel problems and a heavy workload there. Marlow responded that she was not happy with the assignment and would attempt to have it changed. Marlow then obtained authorized sick leave for the period from August 19 through September 6, 1982, and upon her return on September the ninth, obtained additional approval from Lowe for the purpose of attending an appointment with her doctor. The established policy regarding sick leave, according to Lowe, required the employee to inform his or her supervisor and obtain approval in advance of the absence if possible, or to notify the supervisor as soon as the employee became aware of the need to be absent from work for sickness, or, in the event the supervisor was unavailable, to notify supervisor's supervisor.

Although Marlow was aware of the sick leave policy, on the day following her authorized absence of September the ninth, she called the Calhoun County office, but not her supervisor's office, to report that she would be seeing a doctor that day for testing and that she had expectations of being hospitalized for further testing. Marlow neither contacted anyone, nor appeared for work from September 10 until September 21, at which time Gill received a letter dated September 16 from Dr. Thomas, indicating that he had advised Marlow, after seeing her on the 16th, to take a medical leave of absence from work for two weeks. On September 22, Marlow called his office to inform him that she was being treated for osteoarthritis and hypertension. Finally, on October 4, Lowe received a letter from Dr. Thomas, disclosing that Marlow had been undergoing treatment since September the ninth. As a result of these absences, Marlow, on October 21, 1982, received notice of dismissal from her position, effective as of October 19, 1982.

Lowe stated that the HRS Rules of the Career Service System ¹ (rules) governing the terms of Marlow's employment set forth the disciplinary actions to be applied in instances of unauthorized absences:

first occurrence ... written reprimand

second occurrence ... up to 10 days suspension

third occurrence ... up to 30 days suspension, demotion or dismissal

fourth occurrence ... dismissal

According to Lowe and the October 21 notice of dismissal, Marlow was discharged for seven occurrences of unauthorized absences, one occurrence for each of the seven consecutive days she did not appear or notify her supervisor as required by the rules, and for failure to follow the proper procedure for obtaining approved sick leave. ² Lowe admitted that Marlow was never issued a written reprimand, nor was she suspended in accordance with the procedure outlined by the rules for first and second occurrences of unauthorized absence.

At the hearing before the Commission on the appeal filed by Marlow, the parties stipulated that the Commission should decide whether, as a matter of law, seven consecutive days of absence constitute one occurrence, or seven separate occurrences of unauthorized leave. The Commission ruled that the seven-day absence should have been treated as a first occurrence offense, rather than a multiple occurrence offense, and therefore concluded that she had been improperly disciplined. The Commission then proceeded, on its own motion, to direct verdict in favor of Marlow over objection by counsel for HRS, who argued that the Department had not been permitted to present a case on the issue of whether just cause existed for the dismissal. The Commission subsequently entered a written final order, finding that no just cause existed for the dismissal, and directing that Marlow be reinstated with back pay.

We disagree with HRS' first argument that the seven consecutive days of absence constitute multiple occurrence offenses. The Department's rules provide an incremental approach for disciplining various occurrences of unauthorized absences; they establish a procedure for placing the employee on notice that a penalty increasing in severity will be imposed for each occurrence --not day-of unauthorized absence. Because the sanctions for the first and second occurrences were never inflicted upon Marlow, HRS could not properly bypass the procedure outlined by the rules and exact the most...