STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES CUTLER, )

)

Petitioner, )

)

vs. ) Case No. 85-3226

) STATE OF FLORIDA, DEPARTMENT ) OF LABOR AND SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held in Miami, Florida, on January 9, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows: For Petitioner: Charles Cutler, pro se

654 N. W. 10th Street

Miami, Florida 33136

For Respondent: Ken Hart, Esquire

Florida Department of

Labor and Employment Security

131 Montgomery Building Tallahassee, Florida 32301

BACKGROUND AND PROCEDURAL MATTERS

This proceeding was commenced when the Petitioner filed his letter dated September 5, 1985, with the Department of Administration, contesting his termination by alleged abandonment from the Department of Labor and Employment Security. The letter, considered a petition for review, was forwarded to the Division of Administrative Hearings for conduct of a formal hearing.

At the commencement of the hearing it was determined that the Department, although styled Respondent, had the burden of

proving that its termination of the Petitioner was Justified. More specifically, the issue at hearing was whether Charles Cutler abandoned his position as provided in Career Service Rule 22A-7.10(2), Florida Administrative Code.

The Department presented the testimony of Jean Wilson, Kay Hilton, Donald Vetromile and Darryl Rutz; Exhibits #1 through #3 were admitted. Charles Cutler testified on his own behalf and presented no other witnesses; his Exhibits #1 and 2 were admitted. Two additional documents were attached to Mr.

Cutler's Proposed Findings of Fact dated January 18, 1986: a two-page medical record, and a two-page letter dated August 15, 1985. The medical record was listed on the pre-hearing stipulation as one of Respondent's exhibits and Respondent has not moved to strike the attachments to the proposed findings of fact. The medical record pages were also attached to Mr.

Cutler's petition for review (his letter to the Department of Administration referenced above). They clearly relate to the issues in this proceeding and were considered in the preparation of this Recommended Order. The two-page letter, however, has no probative value and was not considered. Nothing in the record of this proceeding indicates to whom the letter was addressed or when it was sent, if ever. At best it remains simply an unsworn statement of Mr. Cutler's case.

The proposed findings of fact submitted by both parties were considered in the preparation of this Recommended Order, except as addressed above. A specific ruling on each proposed finding is included in the Appendix attached to, and incorporated as part of this Recommended Order.

FINDINGS OF FACT

1. At the time of his separation, Charles Cutler had been employed by the Florida Department of Labor and Employment Security for approximately eight years, and had achieved permanent status in the Career Service. He was hired as a disabled veteran under a disabled veteran outreach program and worked as an employment interviewer at the Miami Downtown Civic Center office of the Division of Labor, Employment and Training. (Testimony of Charles Cutler, Testimony of Jean Wilson, Petitioner's Exhibit #1).

   
   

2. During the months of May, June, July and August 1985, Mr. Cutler's attendance at work was highly sporadic during May, he logged 8 hours of annual leave, 8.5 hours of regular sick leave, 48.5 hours of leave without pay and 16 hours of "other" leave; during June he logged 87.3 hours of leave without pay; during July he logged 19 hours of regular sick leave and 103 hours of leave without pay; during August he didn't work at all. By letter dated August 16, 1985, signed by Ronald Villella, Director of the Division of Labor, Employment and Training,

   Charles Cutler was notified that he had abandoned his position effective the close of business on August 9, 1985. (Respondent's Exhibit #1; Petitioner's Exhibit #2).

   
   

3. Kay Hilton was Mr. Cutler's supervisor at the time of his separation. She knew when he was absent and present and was responsible for receiving his leave requests. She furnished information on absences to the main office. At the hearing she verified the accuracy of the Monthly Absence Reports (Respondent's Exhibit #2) described in paragraph 2, above.

   
   

4. Mr. Cutler was hospitalized with bleeding ulcers the evening of May 31, 1985. Surgery was performed on June 4th and he was discharged under doctor's care on June 7, 1985. Several months prior to the hospitalization, Mr. Cutler and Ms. Hilton discussed his medical condition and need for surgery. She felt that it was up to him to decide when to have it done. Mr. Cutler was absent from work the first two weeks in June. About every third day someone would call in to say that he was sick, but it was not until later that someone heard he had surgery. When he returned to work on the 17th of June he was asked for documentation of his illness. He took off work on June 19th to get the documentation. (Testimony of Kay Hilton, Respondent's Exhibit #1, Medical report).

   
   

5. On July 2nd, Mr. Cutler did not return to work after lunch. He was charged with the two hours remaining in his regular work-day (2:00-4:00 p.m.), and the monthly absence report reflects those hours as sick leave. He also did not work on July 3rd, or Monday the 8th. The 4th and 5th were holidays. he did not call in sick but said when he returned that he had suffered stomach pains. Those days were also credited to sick leave. Mr. Cutler's last day at work was July 12, 1985. On Monday, the 15th, a lady called to say that he was sick, and on July 18th another worker in the office took a Call that he was sick. Ms. Hilton never received any requests for leave after that date. (Testimony of Kay Hilton, Respondent's Exhibit #2).

   
   

6. Mr. Cutler was back in the hospital on July 15 and 16 with an infection from the earlier surgery. He was put ". .

   .under strict orders for limited activities for two weeks, ending 8/6/85. [sic]" (Medical report, testimony of Charles Cutler).

   
   

7. Donald Vetromile is the Office Manager of the Job. Service Office, Division of Labor, Employment and Training at the Miami Downtown Civic Center. He supervises the office

   through subordinate supervisors. Kay Hilton is a supervisor of one of his units and he is, therefore, a second level supervisor of Charles Cutler. On August 5, 1985, Charles Cutler called him around 8:30 a.m. to ask about his position and he responded, "I don't know, we haven't heard from you. Bring in the medical documents and we will go from there." Cutler told him he would bring them the next day. He didn't. Mr. Vetromile talked to the Regional Manager, Darryl Rutz on August 9th and was told to prepare the paperwork for termination. He talked with Mr.

   Cutler by phone on August 12th or 13th and told him the matter was turned over to Darryl Rutz. Donald Vetromile keeps a log of his phone calls. He testified both in the Respondent's case in chief and as a rebuttal witness that he did not tell Charles Cutler on August 5th that he was being terminated. (Testimony of Donald Vetromile).

   
   

8. Charles Cutler's account of the conversation on August 5th is substantially different. He claims that Vetromile told him the termination had been processed and he would have to discuss the matter with Darryl Rutz. He claims he called Mr. Rutz' office and was told he was out of town. Mr. Cutler also claims that the medical report was delivered to Vetromile's secretary by his (Cutler's) wife on August 6th. He admits that he did not appear for work on August 7, 8 or 9th, but claims that this was based on his belief that he was already fired. (Testimony of Charles Cutler).

   
   

9. Darryl Rutz confirmed that he had not commenced termination of Charles Cutler as of August 5th. He was in town but on jury duty on August 5th. He was in the office from August 6 through 9, and was in Tallahassee on August 12 and 13th.

   (Testimony of Darryl Rutz).

   
   

10. Charles Cutler was aware of the abandonment of position provision of the Career Service rules and signed a statement to that effect on Pebruary 11, 1985. (Respondent's Exhibit 1).

    
    

11. Mr. Cutler's account of the August 5th conversation with Donald Vetromile and attempt to contact Darryl Rutz, conforms to the substantiating evidence for the following Monday's conversation (on August 12th) when he was told that he was being terminated and Darryl Rutz was out of town. His account of the events of the week of August 5 through 9 is simply not credible. He produced no witnesses to substantiate his claims, even though the person who allegedly delivered the

    medical report was his wife. Moreover, the date of 8/9/85, which appears in the lower left corner of the second page of his medical report, is inconsistent with his statement that the report was given to Vetromile's secretary on August 6th.

    Without some substantiating evidence, or at least some basis for a reasonable belief that he was already terminated on August 5th, the Petitioner's sole excuse for failing to appear for work the week of August 5 through 9, is insufficient. The medical report established that his period of limited activity ended on August 6th.

    
    

    CONCLUSIONS OF LAW

    
    

12. Rule 22A-7.10(2)(a) Florida Administrative Code provides:

    
    

    (2) Abandonment of position

    
    

    (a) 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 Service.

    
    

13. The agency sustained its burden of proving that Petitioner's absence from work on August 6, 7, 8, 1985, was unauthorized and constituted abandonment.

RECOMMENDATION

That the Department of Administration enter a final order finding that Charles Cutler abandoned his position with the Division of Labor, Employment and Training and therefore, has resigned from the Career Service.

DONE and ORDERED this 10th day of February, 1986, in Tallahassee, Florida.

MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1986.

COPIES FURNISHED:

Kenneth Hart, Esquire General Counsel

Montgomery Bldg., Suite 131

2562 Executive Center Circle, East Tallahassee, Florida 32301

Mr. Charles Cutler 654 N. W. 10th Street Miami, Florida 33136

GiIda Lambert, Secretarv Department of Administration

435 Carlton Building Tallaha~see, Florida 32301

Augustus D. Aikens, Esquire General Counsel

Department of Administration

530 Carlton Building Tallahassee, Florida 32301

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Pact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Rejected as contrary to the substantial weight of evidence.

   
   

2. Adopted in substance in paragraph 4.

   
   

3. Rejected. The testimony of this witness was corroborated by other testimony and was found credible.

   
   

4. Rejected. The testimony of this witness was found credible.

   
   

5. As stated in the Background and Procedural Matters in the Recommended Order, the Medical Record was considered but the letter was not.

   
   

6. Rejected as contrary to the weight of evidence.

   
   

7. Rejected as contrary to the weight of evidence.

Rulings on Respondent's Findings of Fact

1. Adopted in paragraph 1.

   
   

2. Adopted as to Petitioner in paragraph 10. The finding as to all employees is irrelevant.

   
   

3. Adopted in paragraphs 2 and 3.

   
   

4. Adopted in paragraph 5.

   
   

5. Adopted in substance in paragraph 7.

   
   

6. Adopted in paragraph 7.

   
   

7. Adopted in paragraph 11.

   
   

8. Adopted in paragraph 8.

   
   

9. Adopted in paragraph 7.

10. Rejected as unnecessary.

    
    

11. Adopted in substance in paragraph 11.

Docket for Case No: 85-003226

Orders for Case No: 85-003226