vs. ) CASE NO. 84-2951
Respondent. )
Pursuant to notice, this cause was heard by Ella Jane P. Davis, the assigned hearing officer of the Division of Administrative Hearings on October 16, 1984, in Miami, Florida.
This case was originally improperly styled and at hearing, the style was corrected to read Department of Health and Rehabilitative Services (DHRS) v. Bell. Petitioner DHRS proceeded first and was charged with the initial burden of proof.
For Petitioner: Mrs. Sharon Langer, Esquire
By letter of June 6, 1984 Petitioner informed Respondent he had abandoned his position by unexcused absence pursuant to Section 22A-7.10(2)(a), Florida Administrative Code. Respondent petitioned for formal hearing to the Department of Administration by signed letter dated June 13, 1984 to which he attached Petitioner's June 6, 1984 letter. The Department of Administration referred the case to the Division of Administrative Hearings for formal hearing.
Accordingly, the issue for determination is whether or not Respondent abandoned his position and resigned from the Career Service System under the circumstances of this case.
Petitioner DHRS presented the testimony of Deborah Wicks Kahn and Ulysses Davis. Petitioner's Exhibits numbered 1 through 5 were admitted in evidence. Respondent Bell presented the testimony of Stephanie Green, Thelma Oliphant, Ann White, and himself, Nelson Bell. Respondent's Exhibits 1 through 3 and 5 through 7 were admitted in evidence. Respondent's Exhibit 4 for identification only was not tendered into evidence and was withdrawn.
Both parties waived their entitlement to file proposed findings of fact and conclusions of law. Transcript was filed with the Division of Administrative Hearings December 31, 1984.
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto pursuant to Section 120.57(1), Florida Statutes.
Respondent has been employed as a permanent full-time employee since March 7, 1980 with Petitioner's facility, Landmark Learning Center (hereafter, "Landmark") located in Opa-locka, Florida and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code.
The purpose of Landmark is to train, program, and modify the behavior of retarded clients so that they may realize their fullest potential for self care and independence.
Ulysses Davis is the Superintendent of Landmark. Immediately below him in the chain of command is Deborah Wicks Kahn, Residential Services Director. Hers is a supervisory administrative position also over the entire facility. Within Respondent's unit, which is one of several units within Landmark, there are other supervisors between Respondent and Deborah Kahn.
Approximately 1980, Respondent was convicted in federal criminal court of bank fraud but remained at liberty pending resolution of an appeal and various post-conviction relief procedures for reduction of a three-year sentence.
Respondent has had a history of leaves of absence during his employment with Landmark. The longest hospitalization established by his medical records was from January 30, 1983 to May 6, 1983 at North Miami Hospital for approximately 96 days or three months; from September 18, 1983 to September 25, 1983 (approximately six days) he was again hospitalized at North Miami Hospital. At that time, ulcer disease was ruled out by Dr. Bertram P. Shapiro (Bell Composite Exhibit 7). These hospitalizations were known to Respondent's supervisors and co-workers and occurred during periods when leave had been authorized, although the nature of the type of leave (i.e., sick leave, annual leave, disability leave, leave without pay) was not established. Everyone at Landmark seems to have known that thereafter Respondent was on medication for his stomach and assumed or had been told by the Respondent that his problem was associated with bleeding ulcers.
The usual procedure followed at Landmark requires that any leave of absence of one to two days may be approved by a lower level supervisor on an employee's bi-weekly time sheet. Leaves of absence in excess of one-two days require approval of at least Director Kahn. If the leave requested will be completed within the current two-week pay period, the bi-weekly time sheet may be used by the employee to make his leave request and approval is indicated on the time sheet itself. A time sheet is signed by Director Kahn or a lower level supervisor if the shorter leave is approved, and if it is disapproved, the word "disapproved" and the supervisor's or Director's signature is signed at the bottom.
So that multiple time sheets will not be tied up by extended leave requests, a separate written request is required from the employee and a
separate outside proof of need therefor must be attached to the employee's written request for all leave requests in excess of a two-week period. For instance, if the request is for extended educational leave, the employee's request must be made in writing with an attached verification of the program from the educational institution. If the request is for extended medical leave, the employee's request must be made in writing with an attached doctor's statement verifying the employee's need therefor. Superintendent Davis requires that his subordinate supervisors get his approval before they grant any extended leave request. In extended leave cases, a separate approval letter is typed, signed by Superintendent Davis and sent certified mail, return receipt requested, to the employee whose leave has been approved. Director Kahn testified she habitually would approve leave requests in increments of one, two and three months after getting guidance from Superintendent Davis or the personnel office.
Shortly prior to October 17, 1983, Respondent requested a leave of absence for two months which Director Kahn denied due to an agency-wide survey (inspection). She wrote on the bottom of this request that Respondent would also need to get a supportive medical statement. When the survey concluded, Respondent approached Director Kahn about a leave of absence which she said she would approve if the Respondent provided a supporting medical statement. Director Kahn understood this to be a renewal of Respondent's request for either two or three months of medical or personal leave. Respondent states he understood this to be a request for one year of medical leave, specifically October 17, 1983 through October 17, 1984. Director Kahn again asked for a supporting medical statement. Director. Kahn left on vacation for three weeks immediately following this conversation.
Respondent, in response to telephoned information from his lawyer, reported to Federal Prison Camp, Eglin Air Force Base, Florida, and on October
17 and 13, 1983 was processed in accord with federal prison procedures to begin serving his criminal sentence. Part of this process is a thorough medical examination (Bell Exhibit 6) and he thereafter received extensive treatment for his medical problems, including ulcers.
After Director Kahn returned from three weeks' vacation, the person she left in charge in her office presented her with a medical statement on Dr. Bertram Shapiro's stationery, dated October 17, 1983, urging that Respondent be granted a one-year medical leave of absence (Bell Exhibit 3). The date this item was stamped into the Landmark personnel office is November 10, 1983. No formal written request of Respondent for one year's medical leave was received by Director Kahn, Superintendent Davis, or the Personnel Office.
Despite the absence of a formal written request from Respondent for one year to correspond with Dr. Shapiro's statement dated October 17, 1983, a letter authorizing two months' leave of absence from October 19 through December 19, 1983 was sent by certified mail, return receipt requested, to Respondent at 2146 N.W. 61st Street, Miami, Florida 33142 (HRS Exhibit 1). This letter was signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Residential Services Director, Facility II. It states that Respondent's failure to report for duty December 20, 1983 would constitute unauthorized leave and three consecutive days of unauthorized leave would result in Respondent being deemed to have abandoned his position and to have resigned his position in accord with Section 22A-7.10(2)(a), Florida Administrative Code. Petitioner's November 17, 1993 letter was delivered November 25, 1983 to 2146 N.W. 61st Street, Miami, Florida 33142 and was signed for by Respondent's sister-in-law, Vesturee Brownlee (HRS Exhibit 2).
This address continued to be the legal address of Respondent from October 17, 1983 at least through the date of the hearing. Respondent admitted intentionally not notifying Petitioner of any other address where he right be reached until mid-May 1984. Indeed, Respondent and his girlfriend, Ann White, a co-employee, worked diligently until mid-May 1984 to camouflage his criminal incarceration and exact location from everyone at Landmark. Further, this address appears as his legal address on all of his federal prison incarceration documents (Bell Exhibit 6).
At hearing, Respondent denied that he received the November 17, 1983 letter but it is clear that he knew its contents because approximately December 19, 1983 Respondent telephoned Director Kahn at her home and requested an extension to a full year's leave dating from the doctor's statement dated October 17, 1984. Director Kahn said three months' leave might be authorized. Despite discussing his ulcer problems, no mention of jail or his actual whereabouts was made by Respondent.
Although a written request and new doctor's statement was not submitted by Respondent, his oral telephone request to Director Kahn was acted upon. On January 20, 1984, a letter (HRS Exhibit 3) was sent by certified mail, return receipt requested, to Respondent at his last known address. This letter, signed by Ulysses Davis, Superintendent, and Deborah Wicks Kahn, Director, authorized leave from December 17, 1983 to Friday, April 27, 1984. Instructions were given that if Respondent could not report on Monday, April 30, 1984 at 8:00 a.m., he must, prior to that date, complete a blank leave request showing his anticipated date of return and submit it to "me". Since the letter was signed by two supervisors, I interpret its intent to be that the Respondent could have submitted his completed leave request to either Superintendent Davis or Director Kahn. Again, Respondent was instructed that failure to either report for work timely on April 30 or to submit a written request for extension would result in a determination of abandonment of his position pursuant to Section 22A- 7.10(2)(a), Florida Administrative Code. Petitioner's January 30, 1984 letter was delivered on February 8, 1984 to Respondent's last known address and was signed for by Rosa L. Bell, Respondent's mother (HRS Exhibit 4). Although at hearing Respondent denied that he received Petitioner's January 30, 1984 letter, it is clear that he knew the contents thereof because in at least four telephone conversations with Landmark employees, Ann White and Leah Black, Respondent discussed the concern over his medical condition and absence from the job which had been expressed to Ms. White and Ms. Black by Director Kahn and other Landmark employees.
On April 30, 1984, Respondent again did not report to work nor did he complete and submit to anyone at Landmark a written leave request form. In excess of three consecutive days Passed without Petitioner receiving any communication from Respondent. Petitioner did not report to work at any time during this period because he was still involuntarily incarcerated in Lexington, Kentucky.
On May 8, 1984, a letter (Bell Exhibit 1) was sent by certified mail, return receipt requested, to Respondent at his Miami address. This letter was signed by Superintendent Davis and by Leah F. Black FOR Director Kahn in Ms. Kahn's absence. This letter, designated a "warning of abandonment letter," states that Respondent's failure to report for work or otherwise make contact after April 27, 1984 had resulted in Respondent being placed on an unauthorized leave of absence and that unless Respondent contacted the signatories with a "reasonable and acceptable" excuse for the unauthorized absence since April 27,
1984 and/or reported for work by close of business on May 17, 1984, a determination of abandonment pursuant to Section 22A-7.10(2)(a), Florida Administrative Code, must be made. Respondent was specifically cautioned that a "response is vital to your continued employment." The letter provided Respondent the option of resigning if he sent a letter of resignation by May 17, 1984. This letter was delivered on May 11, 1984, to Respondent's Miami address. It was signed for by Rosa L. Bell, Respondent's mother (Bell Exhibit 1).
At hearing Respondent denied that he received Petitioner's May 8, 1984 letter but it is clear that he knew its contents and import because he admittedly signed and sent a two page typed letter dated May 16, 1984 to Superintendent Davis. (Tr. 151) This letter was received in the Superintendent's office on May 21, 1984. (Bell Exhibit 2) This was four days after the requested due date of May 17, 1984 for any excuse. Respondent's May 16, 1984 letter informed his supervisor for the first time that Respondent was serving a federal sentence for bank fraud, that he was scheduled to be released June 30, 1984; that he felt he was not guilty of crime, that he was unaware of Director Kahn having her vacation during the time when Respondent requested his leave, that he did not confide his jail problem to Director Kahn because he did not trust her, that in December Director Kahn told him she did not receive the Respondent's one year leave request letter from Donna Bailey, that Respondent had been in touch with Ms. Leah Black since 1983 and recently hand informed Ms. Black of his present location due to rumors, that before leaving Landmark, Respondent requested a leave of absence of one year, that at that time Respondent had accumulated four months of accrued leave and requested four months leave with pay and the remainder as leave without pay, that Director Kahn told him she could not approve his leave request without a physician's statement and he had attached such a statement to his letter request before he left Landmark and gave it to Donna Bailey.
Superintendent Davis and Director Kahn believed Respondent to be sick until receipt of his letter dated May 16, 1984. That date is the first date either had actual knowledge of his physicial location and that he was in jail.
In Respondent's absence, his supervisors were required to hire temporary employees to fill his position as Behavior Program Specialist. Sometimes they were not able to hire any temporary fill-in personnel and this created additional work for other full-time employees in covering Respondent's caseload. Sometimes the temporary help they were able to hire were not of a comparable skill level with Respondent or someone who might have taken the job full-time. As long as Respondent was on a leave of absence they were unable to advertise for a skilled full-time replacement. This had a detrimental effect on Landmark's in-depth applied behavior modification program.
Superintendent Davis determined that Respondent's admission of involuntary incarceration, even if coupled with institutional medical care, did not constitute a reasonable and acceptable excuse as requested in Petitioner's May 8, 1984 letter. This determination is consistent with Landmark's internal policy. Superintendent Davis has previously refused all employees' requests for extended leave for the purpose of serving involuntary jail time. He testified that he would not have granted any of Respondent's previous leave time nor any extensions thereof if the jail sentence had been known to him. His basis for this policy is that criminal sentences are detrimental to employees' functions as role models. He applied this policy to Respondent because Respondent's position as a Behavior Program Specialist requires intensive leadership and role modeling/programming of retarded clients. Superintendent Davis also considered the Respondent's failure to disclose his incarceration to be dishonest dealing
with the agency. Superintendent Davis further determined that the date of his receipt of Respondent's May 16, 1984 letter was beyond the allotted time for such excuse.
Respondent maintained that he was diagnosed early on the morning of October 17, 1983 by Dr. Shapiro as needing a year's ulcer treatment, applied for and got the leave of absence from Director Kahn some time between Noon and 2:00
P.M. that same day, and thereafter, between 4:30 - 5:00 P.M., he was telephoned by his lawyer to report that very day to federal prison in Eglin, Florida.
Respondent says that he had a normal appointment with Dr. Shapiro at 10:45 A.M., October 17, 1983, and at that time received the statement indicating need for a year's leave of absence (Bell Exhibit 3), returned to Landmark, wrote out on a legal pad what was apparently an explanation to Director Kahn that he wanted to use 4 months of accumulated leave with pay (annual and sick leave combined) and to receive 6 months leave without pay to cover October 17, 1983 through October 17, 1984; that he then gave this to Donna Bailey to type, that Director Kahn signed her approval on the typed letter and he returned his letter and medical letter to Donna Bailey. Stephanie Green states that she was with Respondent at the doctor's office on October 17, 1983, and saw him give his typed letter request, the medical letter, and his timesheets to Donna Bailey. Ms. Green does not recall any approval at the bottom of Respondent's letter.
Ann White, Respondent's girlfriend, supports some of this information but contradicts much by saying she saw Respondent's letter request at her home on a separate occasion and saw the doctor's letter before that date when hue showed it to her at Landmark. She then says that at the end of October 1983, she examined Respondent's personnel file and saw the Respondent's typed letter request with Director Kahn's approval written at the bottom with the medical letter. These witnesses may have seen another earlier leave request, but timesheets and approval on the bottom of an employee's request would be inappropriate for extended leave request and approval. Director Kahn absolutely denies giving a year's approval in writing at any time and denies ever receiving a typed letter request for one year signed by Respondent. Her secretary was not Donna Bailey but was Sandra Williams. Based upon observation of the candor and demeanor of the witnesses testifying and their credibility or lack thereof, I choose to believe Director Kahn. Independent of the credibility of the live testimony, I also find supportive of Ms. Kahn's testimony the Respondent's admission that he gave his documents, if they were given, to someone not her secretary. Respondent further stated that at that time before his lawyer's call he intended a vacation to get away from it all instead of immediate medical care. Also clearly supportive of Ms. Kahn's testimony is Bell's Exhibit 2 wherein Respondent admits Director Kahn told him in their December phone conversation that she did not receive his letter request for a year's leave and that he was not approved for a year but might be approved for an additional three months after the original December 19, 1953 date.
On June 6, 1984, Superintendent Davis sent a letter, (HRS Exhibit 5), certified mail, return receipt requested, to Respondent Bell at Antaeus Unit, Post Office Box 2000, Lexington, Kentucky, 40511. This was the return address on the envelope of Respondent's May 16, 1984 letter. At hearing, Respondent denied receipt of this letter but was admittedly incarcerated by the federal government at that location at that time and did not return to Miami until June 17, 1984. Petitioner's June 6, 1984 letter was received at that address on June 11, 1984, and was signed for by "D.D. St (illegible)" (HRS Exhibit 5). The undersigned finds that Respondent did receive on that date Petitioner's June 6,
1984 letter which stated that Respondent's failure to report on April 30, 1984, and thereafter was now considered abandonment of his position under Section 22A-
7.10 (2)(a) and that he was deemed to have resigned as of the date the letter was received or date it was returned to Petitioner if that occurred.
The undersigned is not impressed by Respondent's analysis of Bell Exhibit 5. This item was found among Petitioner's business records, in Respondent's Personnel file. It is a handwritten, undated memorandum which reads in one handwriting "N. Bell went out on med. leave but last med slip is 10/83. Needs one every 30 days even the leave is for year-they keep jumping back and forth on AL to SL, etc." To which, another's hand has replied, "notified Bill Miller 2/13/84 will send in." At best, its message is ambiguous and one obvious interpretation is that monthly doctor's statements would be required by Petitioner from Respondent although the payroll employees already had the medical statement dated October 17, 1983 specifying one year, and that some confusion existed as to how to debit the Respondent's four months accumulated annual and sick leave during his absence.
Under the foregoing findings of fact, Respondent abandoned his position upon his unexcused absence for three consecutive days after April 30, 1984.
CONCLUSIONS OF LAW
Section 22A-7.10(2)(a) provides in pertinent part as follows: "(2) Abandonment of position
An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Services . . ."
Respondent took the position that he had been granted a valid one year leave of absence for medical purposes by signature of Director Kahn across the bottom of a typed request for leave, to which typed request he had attached Dr. Shapiro's letter of October 17, 1983; that he had received no subsequent written extensions of time or warnings that abandonment of Position would be inferred if he did not report timely; and that he was entitled to the one year leave, despite any subsequent warnings of abandonment, for purposes of serving a federal criminal sentence because he was simultaneously receiving medical care he would otherwise have had to obtain privately. Respondent reasons that there can be no deception on his part that he sought the leave for medical treatment purposes because he, in fact, thereafter got medical treatment while in federal custody.
Petitioner's position was that although Respondent never actually submitted a formal written request for a year's leave of absence, even if he had done so, he was still only granted three months leave through December 19, 1983. Petitioner states this leave was thereafter extended to April 27, 1984, and when Respondent repeatedly failed to timely report for work and was absent without an acceptable excuse in excess of three consecutive days, he thereby abandoned his position and resigned pursuant to Section 22A-7.10(2)(a), Florida Administrative Code.
Petitioner's point is well taken.
Section 22A-8.02 provides in pertinent part as follows:
The granting of any leave of absence with or without pay shall be in writing and shall be approved by the proper authority within the agency.
Any leave of absence with or without pay shall be approved prior to the leave being
taken, except in the case of an emergency where the employee must be absent prior to receiving approval from proper authority for the absence.
When prior approval cannot be obtained by the employee due to such emergencies, the
agency head shall take one of the following actions:
Grant the employee leave with pay, provided the employee has sufficient accrued credits to cover the absence.
Place the employee on leave without pay for the absence, or,
If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.
If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the agency head shall place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service. (Emphasis supplied)
Respondent's May 16, 1984 letter constitutes an admission that Respondent was aware, as of December 1983, that a year's leave of absence had never been authorized in writing by the proper authority within the agency. Accordingly, Respondent's protestations that several times when he telephoned Ann White and Leah Black he ignored their warnings of abandonment procedures because he considered his one year leave to be in effect, do not ring true. Any claims of Respondent that Leah Black approved a leave of absence until the end of June are not viable as they were not in writing and she was clearly not the proper authority within the agency to grant extended leaves. Respondent's phone calls to her after May 16 were too late anyway; and if anything, they indicate the Respondent knew he still needed an authorized extension of leave.
Section 22A-8.11(2)(b) provides:
Use of sick leave shall not be authorized prior to the time it is earned and credited to the employee and shall only be used with the approval of the proper authority within the agency .
(d) Upon request, an employee shall be allowed to use accrued sick leave credits as provided in this section:
Prior to authorizing an employee to use sick leave credits, the agency head shall require the employee to certify that the absence was for reasons which are justified
and provided in Section 22A-8.11(2)(b)
After 3 workdays of absence in any 30 calendar day period, the agency head may require a medical certification of the employee's ill- ness before authorizing any additional use of sick leave credits by the employee . . . (Emphasis supplied)
This legitimate request for a medical statement every thirty days is clearly what was being discussed in Bell Ex. 5 (See above, Findings of Fact Paragraph 23)
The Respondent received free medical care at taxpayer expense in conjunction with serving his federal criminal sentence for bank fraud and this was financially beneficial to him personally, but his incarceration was involuntary and clearly would have kept him from returning at the specified time. When he revealed his incarceration in his May 16, 1984 letter, that incarceration was both an untimely excuse and an unacceptable excuse to Superintendent Davis. This supervisor with proper authority did not approve in writing leave after April 27, 1984. His assessment was valid in light of the demands and peculiarities of the Landmark facility caseload.
In short, Respondent's approved leave ran out on April 27, 1984. Despite further opportunity to rectify the situation, Respondent continued to be absent on unauthorized leave at the Lexington Kentucky prison facility up through the date of receipt on June 11, 1984 of Superintendent Davis' June 6, 1984 letter. Respondent abandoned his position and in effect resigned as of that date.
Based on the foregoing findings of fact and conclusions of law set forth herein, it is RECOMMENDED that, Respondent having been absent without approval for 3 consecutive workdays he be deemed to have abandoned the position of Behavior Program Specialist and to have resigned from the Career Service effective Jun 6, 1984.
DONE AND ORDERED this 1st day of February, 1985, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1985.
Secretary, Dept. of Administration
David H. Pingree
Secretary, Dept. of Health & Rehabilitative Services
