STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER ) MANAGEMENT DISTRICT, )

)

Petitioner, )

)

v. ) CASE NO. 85-2123

)

RUSSELL SPENCER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on September 4, 1985 in West Palm Beach, Florida. Petitioner was represented by counsel and Respondent represented himself, pro se.

APPEARANCES

For Petitioner: Stanley J. Niego, Esq.

Post Office Box V

West Palm Beach, Florida 33402-4238

For Respondent: Russell Spencer, pro se

1612 Green Lane

Lantana, Florida 33462

ISSUE

Whether Respondent, Russell Spencer, willfully abandoned his employment with Petitioner, South Florida Water Management District, by unauthorized absence and failure to call-in or report to work for a three day period, without extenuating circumstances.

BACKGROUND

By letter dated March 14, 1985, Petitioner, South Florida Water Management District ("District"), notified Russell Spencer

("Respondent") that he was "considered to have abandoned [his] job and resigned [his] employment with the District"

due to unauthorized leave and failure to report to work for three consecutive working days--March 11, through 13, 1985. (P-

6)

By letter of March 29, 1985, to Respondent, the District confirmed the termination of his employment as of March 13, 1985; advised that he may file a grievance in accordance with the District's prescribed grievance procedures, and informed him that after exhausting the grievance procedures--he may petition for an administrative hearing pursuant to Section 120.57, Florida Statutes. Respondent exhausted the District's grievance procedures, then timely filed a "Petition for Hearing" with the District on May 8, 1985.

On June 18, 1985, the District forwarded his petition to the Division of Administrative Hearings for assignment of a hearing officer to conduct a hearing, subsequently set for September 4, 1984.

At final hearing, the District presented the testimony of Robert Chapman, Paul Thomas, Jack W. Braun, Andrew Dubois, Thomas J. Schwartz, and William C. Brannen, Jr. Respondent was called as an adverse party, and also testified in his own behalf. The District's exhibit nos. 1 through 27, 29, 31 through 34 were received in evidence,1 as were Respondent's exhibit nos. 1 through 5.

Post-hearing proposed findings of fact were filed by Respondent on September 25, 1985 and by the District on October 4, 1985. Rulings on the proposed findings are contained in an attached Appendix. No transcript of hearing has been filed.

Based on the evidence, the following facts are determined:

FINDINGS OF FACT

1. Respondent was employed by the District as a title examiner in its Real Estate Division. Respondent felt aggrieved and dissatisfied with his employment as a result of the denial of two promotions, which he believed he was entitled to receive. Most recently, in February, 1985, his application to fill the position of "Director of the Real Estate Division" was denied. (P-4)

2. The Directorship of the Real Estate Division was vacated on January 31, 1985, as a result of the retirement of Jack W. Braun, who had held that position for approximately 12 years. Upon Mr. Braun's retirement, William C. Brannen, Jr., Director of the Land Management Department (which includes the Real Estate Division) assumed the position of Acting Director of the Real Estate Division until a new director could be hired. As Acting Director, he was Respondent's immediate supervisor during the interim period.

   
   

3. The District has a long-standing written policy regarding annual leave, which requires prior written authorization from the immediate supervisor. The policy in effect in November 1982 and continuing through February 1985, states:

4. Use of Annual Leave: a. * * *

   b. The use of annual leave shall require the prior approval of the employee's Supervisor or Division Director. Annual leave requests for more than 30 calendar days shall require prior written approval of the employee's Department Director.

   
   

   (p-10) The District's attendance and leave policy was revised on February 28,n 1985, but not with regard to the use of annual leave. The District developed and utilized a standard form for requesting annual leave. (P-11, P-12)

   
   

5. On February 26, 1985, Respondent approached a co- worker, Andrew DuBois, and asked him to forward to Mr. Brannen (Acting Division Director) the following memorandum dated that day:

   
   

   In reference to the above subject matter, I have, at this writing, 200 plus hours of annual leave accrued and I intend to use whatever necessary to retain legal counsel to file suit on my behalf against this District.

   
   

   (P-1) He also asked Mr. DuBois to submit blank time sheets on his behalf. Mr. DuBois declined to become involved because he believed the matter was between Respondent and his supervisor. He did, however, remind Respondent of the need to obtain prior approval for annual leave. Respondent replied that he would not submit a leave request "for legal reasons." (P-34) He then left the District's offices and went home. Upon receipt of Respondent's memorandum, Mr. Brannen consulted with Mark Chapman, Director of the District's Personnel Department, as to the appropriate response. Mr. Chapman advised Mr. Brannen that Respondent was subject to disciplinary action under the District's Corrective Action Policy for taking unauthorized leave. (P-18, Section F.2.; Testimony of Brannen, Chapman Section C.7. of the District's Attendance and Leave Policy)

   
   

6. Instead of initiating disciplinary action, Mr. Brannen telephoned Respondent and asked him to meet with him at 1:00

   p.m. that day, February 26, 1985, to discuss his use of leave. At 1:00 p.m., Respondent, Mr. Brannen and the District's legal

   counsel, Thomas Schwartz, met at the District's offices. Mr. Brannen reminded Respondent that he was his acting supervisor and that his prior approval was required before Respondent could use annual leave. In reply to Respondent's expressed desire to seek legal counsel to file suit against the District, attorney Schwartz told him that his reasons for taking leave were immaterial with regard to whether a leave request would be granted. Respondent then asked for five days leave, through March 1, 1985. He completed the required leave forms and they were approved at the meeting. (P-2 Testimony of Brannen, Schwartz)

   
   

7. Two days later, Mr. Brannen prepared a memorandum for the files summarizing the February 28, 1985, meeting. The memorandum, a copy of which was sent to Respondent by certified mail on March 1, 1985, and received on March 2, 1985, contains the following statement:

   
   

   We met at the appointed time and I explained to Russ that us of annual leave must have prior approval by me as his acting supervisor. We discussed how long he felt he needed to be on leave. Russ said he needed to be off through March 1, 1985. He filled out leave slips and I approved use of annual leave through March 1.

   (P-2)

   
   

8. On February 28, 1985, Respondent returned to pick up his paycheck. On that date, Mr. Brannen and Mr. Dubois observed that Respondent's desk and office had been emptied of all personal materials and assumed that Respondent did not intend to return to work. (P-34; Testimony of DuBois, Brannen)

   
   

9. Respondent's apparent intention not to return to work disturbed Mr. Brannen because there was a significant backlog of title examination work. Due to recruitment procedures it would have taken considerable time to hire a new title examiner, and recruitment could not be initiated until Respondent expressed a definite intention to resign. (Testimony of Brannen)

   
   

10. Respondent's leave expired at 5:00 p.m. on Friday, March 1, 1985, but he did not return to work on Monday, March 4, 1985, the next working day. At 8:09 a.m. that date, Respondent telephoned Mr. DuBois, asking him to relay to Mr. Brannen his request for an additional week of annual leave through March 8, 1985. Mr. DuBois immediately relayed the request to Mr.

    Brannen, who telephoned Respondent at 8:21 a.m. at his residence, but received no answer. (P-3, P-34; Testimony of Brannen, DuBois)

    
    

11. Mr. Brannen discussed Respondent's further unauthorized absence with Personnel Director Chapman, who again suggested that he take disciplinary action against Respondent for failure to follow instructions. Mr. Brannen, however again declined to take disciplinary action and instead decided to approve—after-the-fact—Respondent's verbal request for additional annual leave. On March 4, 1985, he mailed a letter to Respondent advising:

    
    

    Although you did not contact me as I instructed you to do, your use of annual leave through 5 p.m., March 8, 1985, is approved. You will be expected to return to work no later than 8 a.m., March 11, 1985.

    We have a backlog of title work to complete which requires your help; therefore, even though you have accrued annual leave, any further request for its use must be denied at this time.

    
    

    If you do not report to work as instructed you will be placed on an unauthorized leave without pay status until you return to work. After three days on unauthorized leave you'll be considered to have abandoned your job. (e.s.)

    
    

    Respondent received the letter on March 6, 1985. (P-3; R-2)

    
    

12. On March 5, 1985, Respondent sent a letter to Stanley

    1. Hole, Chairman of the District's Governing Board, expressing dissatisfaction with the denial of certain promotions and alleging that the District had a policy of affording preferential treatment to friends and relatives. Respondent then stated that "I will interpret no reply or an adverse reply as an involuntary termination of 18 years of employment with District." (P-4) Although this direct communication with the Board circumvented the District's grievance procedures, the Executive Director of the District, fowarded a copy of the letter to the members of the Governing Board with a cover memorandum dated March 8, 1985. On that day, the District's Deputy Executive Director, Tilford C. Creel, sent Respondent a certified letter, which stated in relevant part:

       
       

       We do not agree with the general content of your letter and particularly we do not agree that you will be terminated due to "no reply or an adverse reply" to your letters. The authority to terminate employees resides in the executive office and in your case, Mr.

       Brannen informs me that you have been granted annual leave through Friday, March 8, 1985. He further informed me that the workload in the title examination area is such that we are in great need of your services and cannot extend your leave any further. There is only one other title examiner and the backlog of work continues to increase.

       
       

       Therefore, we will expect you to report to work on Monday, March 11, 1985, as you were adivsed by Mr. Brannen. (e.s.) (P-5; P-9)

       
       

13. Respondent, however, failed to report to work on March 11, 1985. Neither did he telephone District officials, prior to or on that date to request an extension of his annual leave. Respondent also failed to report to work or telephone the District on Tuesday, March 12, 1985 or Wednesday, March 13, 1985. He was not ill or incapacitated or otherwise unable to reach a telephone. (Testimony of Brannen, Spencer)

    
    

14. On Thursday, March 14, 1985, the District notified Respondent by certified letter that, effective at 5:00 p.m. on March 13, 1985, he was deemed to have abandoned his employment pursuant to Section C.7. of the District's Corrective Action Policy for failure to report to work for three consecutive working days. Personnel action was initiated that same date by Mr. Brannon. On March 29, 1985, the District notified Respondent by certified mail of his right to petition for an administrative hearing pursuant to Section 120.57, Florida Statutes, after first pursuing the normal grievance procedures. (P-6, P-7, P-8)

    
    

15. Respondent requested a grievance hearing by letter dated April 5, 1985. The hearing was held by the Grievance Review Board on April 17, 1985. The Review Board consisted of two supervisory personnel and two non-supervisory personnel, selected at random by Respondent. After Respondent failed to appear at the hearing, the Board concluded that Respondent had

    ample notice and opportunity to return to work and that termination of his employment was justified and consistent with District policy and procedure. (P-13)

    
    

16. Respondent then appealed the Grievance Review Board determination to the Executive Director, who affirmed it.

    
    

17. It was a long-standing District policy that unau- thorized absence from work for three consecutive days would result in termination of employment. On March 14, 1985, the District had in effect an interim written guideline, stating:

    
    

    Any employee who fails to report to work for three (3) consecutive working days without notifying the division office or fails to report to work after a leave of absence has expired or after the leave has been disap- proved, revoked, or cancelled will automati- cally be considered to have resigned his/her employment with the District, barring the supervisors consideration of extenuating circumstances.

    
    

    (P-15,P-18, Section C.7.) This interim guideline was ultimately adopted as a rule, effective April 7, 1985. The District policy in effect prior to the adoption of the interim guideline on February 1, 1985, had a similar provision:

    
    

    Any employee who fails to report to work for three (3) full consecutive working days without notifying the District may be considered to have abandoned the position.

    
    

    (P-15,P-16,P-17)

    
    

18. In implementing this long-standing policy, the District routinely terminated the employment of employees who failed to report to work for three consecutive days. The revised (interim and final) policy contains an exception for "extenuating circumstances," which is reasonably interpreted by the District to cover situations where a sudden emergency or physical impairment prevents an employee from reporting to work. In any event, the employee was still expected to telephone the District, except where prevented by a physical impairment. (P- l9,P-20,P-21,P-22, P-23,P-24,P-26 Testimony of Chapman Thomas)

19. The District uniformly requires adherence to attendance and leave regulations throughout its work force. At its West Palm Beach Field Station, which is responsible for maintaining District projects in the West Palm Beach area, em- ployees are routinely given written notices of any lateness in reporting to work, even if only a few minutes. Repeated tardiness or other cumulative infractions of the District's attendance and leave regulations, which do not involve a failure to report to work for three consecutive days, have also resulted in discharge. It is also a common District practice to deny leave requests when work duties require an employee or supervisor to be at work. (P-25, P-27, P-29, P-31; Testimony of Thomas; Chapman)

    
    

20. Respondent participated in the development of the revised Corrective Action Policy. Several meetings were held among the employees of his division, wherein the employees were given an opportunity to comment on various aspects of the proposed policy. Copies of the policy were distributed to the employees of his division prior to February 1, 1985, when it became effective as an interim guideline. (Testimony of Chapman; Braun; DuBois)

    
    

21. Respondent's acting supervisor, Mr. Brannen, did not act in a retaliatory manner against Respondent in terminating his employment for failure to report to work for three consecutive days. On the contrary, on two prior occasions, Mr. Brannen had refrained from disciplining Respondent for violating the Attendance and Leave Policy. He valued Repondent's capabilities and long-term service to the District, and went to considerable lengths to accommodate him.

    
    

22. Respondent was not in any way impeded by Petitioner in his attempt to seek legal counsel. He was able to confer with six attorneys during his leave of absence. (Testimony of Respondent)

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Subsection 120.57(1), Florida Statutes (1983).

    
    

24. The evidence convincingly demonstrates that Respondent willfully failed to report to work for three consecutive working days without authorized leave and that this constituted

an abandonment of his employment, under long-standing District attendance and leaves policies, interim quidelines effective February 1, 1985, and final guidelines adopted by a rule, effective April 7, 1985. He was specifically notified by certified mail prior to his failure to report to work that such failure would be considered as abandonment of his employment with the District. His employment was terminated based on his abandonment of his employment. No impermissible or retaliating motive has been shown.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That Respondent be deemed to have abandoned his employment (by failing to report to work for three consecutive working days, without authorized leave or extenuating circumstances) and his employment be thereby terminated effective 5:00 p.m. on March 13, 1985.

DONE and ORDERED this 6th day of December, 1985, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1985.

ENDNOTE

1/ The District's exhibits will be referred to as "P-," and Respondent's as "R-."

APPENDIX

1. Rulings on Petitioner's (District) Proposed Findings of Fact 1-21. Approved in substance, with only irrelevant or unnecessary findings omitted.

   
   

2. Rulings on Respondent's Proposed Findings of Fact

   
   

   1. Rejected as a conclusion of law, not a finding of fact.

   2. Rejected as irrelevant.

   3. Approved.

   4. Rejected as a conclusion of law.

   5. Approved.

6-8. Rejected as conclusionary and irrelevant.

Respondent, a long-time employee of the District, had actual or constructive knowledge of the District's unchanged policy, shown to be genuinely reasonable, of requiring prior approval for use of annual leave. His division followed this policy, Mr.

DuBois, his coworker reminded him of it, Mr. Brannen advised him of it, and a written memorandum of his meeting with Mr.

Brannen and attorney Schwartz confirmed it. Finally, by certified letter of March 4, 1985, Respondent was formally notified of it. Similarly, Respondent was aware of the consequences, dictated by long-standing District policy, of failing to report to work for three days without authorized leave. He participated in the review of the revised Corrective Action Policy, in which this policy was explicitly restated.

More importantly, Mr. Brannen specifically notified him of this policy--and the consequences should he remain on unauthorized leave for three days--by letter of March 4, 1985, received by Respondent on March 6, 1985. Despite this warning, Respondent, without extenuating circumstances or excuse, failed to report to work when required.

1. Rejected. Evidence of the District's actions in enforcing its leave policy against other employees established its past practice of insisting on adherence to this policy.

2. Rejected as not supported by the evidence. Mr. Braun's testimony was candid and credible.

3. Rejected as irrelevant. See discussion, paragraph 6-8, infra.

4. Rejected as irrelevant.

5. Rejected, as Mr. DuBois' testimony was accepted as

   credible.

6. Rejected as irrelevant or as unsupported by the testimony of Mr. Schwartz.

   
   

   6-8,

7. Rejected as irrelevant. See discussion, paragraph

   
   

8. Rejected, as the testimony of Misters Brannen,

   Schwartz, Braun, and Chapman was accepted as credible and persuasive. No personal bias or animosity toward Respondent was shown. Mr. Chapman simply insisted on obedience to the District's reasonable, long-standing, and well known leave policies. Respondent's supervisor exercised great restraint in not taking any disciplinary action against him until he was given specific notice, was repeatedly reminded of the need to follow the District's leave policy, and was warned of the consequences of disregarding it.

9. Rejected as irrelevant.

10. Approved.

11. Rejected as a conclusion of law.

COPIES FURNISHED:

Lawrence S. Gendzier, Esq.

400 W. Robinson Street, Suite 212 Orlando, FL 32801

Joseph R. Knapp

1147 Sachemhead Terrace West Palm Beach, FL 33414

================================================================

=

AGENCY FINAL ORDER

================================================================

=

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

3301 Gun Club Road

West Palm Beach, Florida 33406O

IN THE MATTER OF:

South Florida Water Management

District, v. Russell Spencer, DOAH Case No. 85-2123 DOAH Case No. 85-2123

/

FINAL ORDER

This cause, having come before the Governing Board of the SOUTH FLORIDA WATER MANAGEMENT DISTRICT at its regular meeting of January 10, 1986; having not received any written exceptions by any of the parties hereto; having considered the Recommended Order submitted by the Hearing Officer; having considered the recommendation of Office of Counsel that said Recommended Order be adopted in toto; the respondent, Russell Spencer, not appearing before the Governing Board at said meeting, finds, and it is thereupon

ORDERED that the Recommended Order of the Hearing Officer, attached hereto in its entirety as Exhibit "A", is hereby adopted in toto as the Final Order of the Governing Board of the South Florida Water Management District.

DONE and ORDERED this 10 day of January, 1986, at a public meeting held in West Palm Beach, Florida.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ITS GOVERNING BOARD

(Corporate Seal)

Chairman ATTEST:

BY Secretary

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to RUSSELL SPENCER, 1612 Green Lane, Lantana, FL 33462, by U. S. Mail, this 29th day of January, 1986.

Docket for Case No: 85-002123

Orders for Case No: 85-002123