STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

LEROY WILLIAMS-EL )

)

Petitioner, )

)

vs. ) Case No. 85-3600

) (DOA Case No. AB-85-18) FLORIDA SCHOOL FOR THE DEAF AND )

THE BLIND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at St. Augustine, Florida, on June 10, 1986, before Michael

1. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

   
   

   For Petitioner: Leroy Williams-El, pro se

   1360 Northwest 199th Street Miami, Florida 33169

   
   

   For Respondent: Gene T. Sellers, Esquire

   State Board of Education Knott Building

   Tallahassee, Florida 32301

   
   

   At the request of the parties, both parties were allowed until June 30, 1986, in which to file any proposed findings of fact and conclusions of law. On June 30, 1986, the Petitioner filed a document titled Order To Commence On Final Argument, which document contains factual assertions which have been treated as proposed findings of fact. On June 30, 1986, the Petitioner also filed a copy of a document titled Notice of Decision of Appeals Referee. The last-mentioned document has been disregarded in the preparation of this Recommended Order because the document was not referred to or offered for incorporation into the record of this case at any time prior to June 30, 1986. On June 30, 1986, the Respondent filed proposed findings of fact and conclusions of law. In preparing this Recommended Order I have given careful consideration to the factual assertions in the Petitioner's document titled Order To Commence On Final Argument and to the Respondent's proposed

   findings of fact. Specific rulings on each of the Petitioner's factual assertions and each of the Respondent's proposed findings are included in the Appendix which is attached to and incorporated into this Recommended Order.

   
   

   ISSUES AND INTRODUCTION

   
   

   The issue in this case is whether the Petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case. At the hearing the Respondent offered eleven exhibits into evidence and presented the testimony of two witnesses, Charles Crozier and Sam Visconti. The Petitioner offered two exhibits, both of which were rejected.

   The Petitioner did not call any witnesses to testify on his behalf. He expressly declined to be sworn as a witness and testify on his own behalf, even after being specifically advised of his right to do so and being specifically advised that no findings of fact could be made on the basis of his unsworn assertions.

   
   

   FINDINGS OF FACT

   
   

   Based on the stipulations of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing, I make the following findings of fact.

   
   

   1. The Petitioner, Leroy Williams-El, commenced his employment with the Respondent, Florida School for the Deaf and the Blind, in 1977. His last position was Dorm Supervisor I, which position he had held since the 1980-81 school year.

      
      

   2. The position Petitioner held was somewhat critical in that not only did he have to oversee the portion of the dormitory that was assigned to him, but he was also specifically in charge of the care and safety of some ten or twelve students.

      
      

   3. The Petitioner was a permanent employee, but his work period coincided generally with the school year and ran for ten months, generally from August to June each year.

      
      

   4. The Petitioner's last official work day was June 11, 1985. He was not in a work status during the summer of 1985.

      
      

   5. The dorm supervisors were supervised by Charles Crozier, Director of Student Life. At the end of the 1985 school year, the dorm supervisors remained at the school for approximately a week after the students had left and the administration conducted a post-planning week. During the post-planning week, Crozier met with the employees, discussed the upcoming 1985-86 school calendar, and Petitioner and the other dorm supervisors were told

      that their date to report back to work was August 26, 1985.

   6. In addition to discussing the return date with the various employees at the June post-planning meeting, Crozier, under date of August 21, 1985, mailed a letter to the Petitioner at his last known address as it appeared in the school file, that is, 75 1/2 Lincoln Street, St. Augustine, Florida 32084, reminding the Petitioner that his return date for reporting back for work was August 26, 1985.

   7. The Petitioner did not return to work as instructed on August 26, 1985. On August 27, 1985, the Petitioner called Crozier and advised Crozier he had been unable to report to work on August 26, 1985. He was advised by Crozier that he must report to work on Thursday, August 29, at 8:00 a.m. (Exhibit 2) The Petitioner did not report to work on August 29, but instead again called Crozier. Crozier, at this point, got the personnel officer of the school, Sam Visconti, on the phone with him. During the conversation on August 29, 1985, the Petitioner requested that the school "transfer" him to a position with the Department of Health and Rehabilitative Services in Miami. Crozier and Visconti both explained to him that the school had no authority to "transfer" the Petitioner to another job with another agency in another city. He was told that he should report to work immediately or submit a request for leave without pay.

      
      

   8. At the time of Petitioner's telephone call on August 29, 1985, Crozier had already prepared a letter dated August 29, 1985, advising the Petitioner that inasmuch as he had failed to report to work on August 26 and had not reported on August 29 as directed, he was being given an official reprimand. He was further advised that if he did not contact Crozier by September 4, 1985, he would be suspended without pay and failure to report to work would result in his termination.

      
      

   9. The Petitioner did not report to work on September 4, 1985, as instructed.

      
      

   10. On September 6, 1985, Crozier received a call from Lynn Rowe, Visconti's assistant in the personnel office, relaying a telephone call from a lady purporting to be the Petitioner's sister. Ms. Rowe was inquiring whether or not Crozier had any instructions for the Petitioner. Crozier advised Ms. Rowe that the Petitioner was to report to work by the time his normal work week would start, which would be Sunday, September 8.

       
       

   11. The Petitioner did not report to work on September 8, September 9, or September 10, 1985. The Petitioner did not call in and make contact with Crozier or Visconti on any one of those days. When the Petitioner did not report to work for those three days, Crozier again contacted Sam Visconti, the personnel officer, and reported this fact to him.

   12. At no time during the period from August 26 through September 10, 1985, did the Petitioner request from Crozier or Visconti, the personnel officer, annual leave, leave without pay, or any other type of approved leave. The conversations he had with Crozier and Visconti concerned a request that he be "transferred" to a job with the Department of Health and Rehabilitative Services in Miami.

       
       

   13. On September 11, 1985, after Crozier advised Visconti of the Petitioner's failure to report to work, Visconti prepared a dismissal letter under the date of September 11, 1985. This letter summarized the chronology of events concerning Petitioner's failure to report to work and advised the Petitioner that he was considered to have abandoned his position.

       Petitioner was further told of his right to seek a determination and review of his abandonment.

       
       

   14. The letter of September 11, 1985, was mailed to the Petitioner's last known address in the personnel file, which was the St. Augustine address. Late in the afternoon of September 11, Petitioner called Visconti and informed him of the new address in Miami, Florida. Visconti then sent an additional copy of the same letter to Petitioner on September 13, 1985, to the Miami address.

       
       

   15. The Florida School for the Deaf and the Blind is a separate state agency and is not in any way connected with the Department of Health and Rehabilitative Services. Furthermore, the Florida School for the Deaf and the Blind has no offices or positions available in the Miami area.

       
       

   16. Visconti and Crozier discussed with Petitioner his repeated requests for a "transfer" on more than one occasion and repeatedly advised him the Florida School for the Deaf and the Blind had no authority to transfer him to a different job with another state agency.

       
       

   17. At no time did the Petitioner request a leave of absence from Visconti. Visconti advised the Petitioner of the critical nature of his position as a Dorm Supervisor I and explained to him the difficulties created by Petitioner's failure to return to work. Visconti further advised the Petitioner that if he wanted a leave of absence, the personnel officer had to receive the request for the leave of absence in writing and the president of the school would consider the request after it had been received. It was imperative, however, that the Petitioner either bring or mail in a written request for a leave of absence. The Petitioner did not send a request for leave of absence to the school.

   18. The last conversation Crozier had with the Petitioner occurred sometime in late October or November and concerned a request by the Petitioner that Crozier send a copy of the Petitioner's college transcripts to an HRS office in Miami. At that time the Petitioner did not request to be re-employed or to be reinstated. Crozier mailed the materials as requested.

       
       

   19. Williams did not report to the school for employment on or after August 26, 1985, and was considered to have resigned effective September 10, 1985.

       
       

       CONCLUSIONS OF LAW

       
       

       Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

       
       

   20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. See Sec. 120.57, Fla. Stat.

       
       

   21. Abandonment of position is defined and described in Rule 22A-7.10(2)(a), Florida Administrative Code, which reads:

       
       

       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.

       
       

   22. The facts in this case establish that the Petitioner had ample and sufficient notice that he was supposed to report for work on August 26, 1985. Although the Petitioner contacted his supervisor on August 27, 1985, and on various dates thereafter, the general thrust of his conversations was that he was requesting the school to "transfer" him to a position with HRS in Miami. The Florida School for the Deaf and the Blind and the Department of Health and Rehabilitative Services are separate state agencies. The Florida School for the Deaf and the Blind has no authority or obligation to "transfer" the Petitioner or any other employee to a different state agency. Therefore, the school's asserted failure to transfer the Petitioner to another agency is neither legally nor factually sufficient to justify the Petitioner's failure to report for work at the appointed time.

       
       

   23. After the Petitioner failed to report for work on August 26, 1985, the school took several steps to give the Petitioner an opportunity to retain his job. The personnel officer at the school explained to Petitioner various options that were available to the Petitioner short of his actions

       constituting abandonment. The Petitioner could have requested annual leave to take care of any family business he asserts was necessary. There is no evidence that the Petitioner requested any annual leave.

   24. The Petitioner could have made a written request for leave without pay. The Petitioner was advised that while the granting of such leave is by no means automatic, the president would consider any written request. The Petitioner did not submit a request for leave without pay, but kept insisting that he was entitled to some type of "transfer."

       
       

   25. On September 6, 1985, the Petitioner was put on notice that he had to report at the beginning of his shift on September 8, 1985, or be in danger of losing his job. The Petitioner did not report for work on September 8, September 9, or September 10, 1985, nor did he call on any of those days or contact the school with a legitimate, justifiable reason for not reporting to work.

       
       

   26. The facts in this case constitute abandonment within the meaning of Rule 22A-7.10(2)(a), Florida Administrative Code, inasmuch as the employee was absent without authorized leave for three consecutive work days. Therefore, he is properly deemed to have abandoned his position and to have resigned from the Career Service.

       
       

   27. The Petitioner failed to offer any explanation at the hearing for his failure to report for work at the appointed time other than argue that he was entitled to a transfer. His argument is based on his misunderstanding of the circumstances under which employees are entitled to a transfer.

       
       

   28. In this case the employer went beyond what it was required to do in order to attempt to accommodate the Petitioner and avoid taking action to terminate Petitioner's employment. Both Petitioner's supervisor and the school's personnel officer gave the Petitioner several opportunities to report for work during the period from August 26 to September 10, 1985. The Petitioner failed to report for work and did not then nor at the hearing offer any legitimate and legally sufficient reason for failing to report for work.

1. This case is governed by Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982), where the Florida Supreme Court stated:

   
   

   The state and public, however, have an interest in replacing public employees that do not work. Rule 22A-7.10(2)(a) recognizes that interest and, by facilitating elimination of those who do not report to work for a certain time, promotes it.

   
   

2. In accordance with the foregoing I conclude that the Petitioner abandoned his position and that his petition should be

denied.

RECOMMENDATION

Based on all of the foregoing it is recommended that a Final Order be issued concluding that the Petitioner abandoned his position and that his petition should be dismissed.

DONE AND ORDERED this 11th day of July 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 11th day of July 1986.

COPIES FURNISHED:

Mr. Leroy Williams 1360 N.W. 199th Street Miami, Florida 33169

Mr. Leroy Williams-E1 10566 McLaurin Road

Jacksonville, Florida 32216

Mr. Samuel R. Visconti Personnel Officer

Florida School for the Deaf and the Blind

207 North San Marco Avenue St. Augustine, Florida 32084

Gene T. Sellers, Esquire State Board of Education Knott Building

Tallahassee, Florida 32301

Gilda H. Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Richard L. Kopel, Esquire Deputy General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32301

APPENDIX

The following are my specific rulings on each of the findings of fact proposed by each of the parties.

Findings proposed by Petitioner

The rulings which follow immediately below refer to the five (5) unnumbered paragraphs which appear under the caption "Facts To Examine" in Petitioner's post-hearing document titled

Order To Commence On Final Argument. The paragraphs are referred to in the order in which they appear.

First paragraph on first page: First sentence is rejected as constituting a conclusion not supported by the evidence. The last sentence is accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence.

First paragraph on second page: The first two sentences are accepted in substance. The remainder of this paragraph is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence.

Second paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence.

Third paragraph on second page: This paragraph is rejected as constituting argument rather than proposed findings.

Fourth paragraph on second page: This paragraph is rejected in its entirety as not supported by competent substantial evidence.

Findings proposed by Respondent

All of the findings proposed by the Respondent have been accepted with a few editorial modifications in the interest of clarity and accuracy.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

LEROY WTLLlAMS-EL,

Petitioner,

vs. DOA Case No. AB-85-18

DOAH Case No. 85-3600

FLORIDA SCHOOL FOR THE DEAF AND BLIND,

Respondent.

/

FINAL ORDER

This matter is before the Department of Administration for entry of a final order.

The Recommended Order herein was entered on July 11, 1986, by Michael M. Parrish, Hearing Officer. The record in this case, including the exhibits introduced into evidence at the hearing have been reviewed. No transcript of the testimony at hearing has been filed. Having considered all matters of record in this matter, and no party having filed exceptions to the Recommended Order, is hereby ORDERED:

1. That the Findings of Fact contained in the Recommended Order (Exhibit "A", attached hereto) are adopted as the Findings of Fact of the Department of Administration.

   
   

2. That the Conclusions of Law contained in the Recommended Order (Exhibit "A") are adopted as the Conclusions of Law of the Department of Administration.

   
   

3. That the action of the Florida School for the Deaf and Blind in deeming Leroy Williams-El to have abandoned his position of employment and to have resigned from the Career Service is SUSTAINED.

This Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a Notice of Appeal in the First or Third District Court of Appeal pursuant to Section 120.68, Florida Statutes. Such notice must be filed with the District Court of Appeal within thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration, as indicated in the Certificate of Clerk below, or further review of this action will be barred.

DONE AND ORDERED in Tallahassee, Florida, this 25th day of August, 1986.

GILDA H. LAMBERT, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301 (904) 488-4116

Certificate of Clerk:

Filed in the official records of the Department of Administration this 25th day of August, 1986.

Marjorie J. Orrick Clerk

COPIES FURNISHED:

Michael M. Parrish, Hearing Officer. Division of Administrative Hearings

101 Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

Mr. Leroy Williams-E1

1360 Northwest 199th Street Miami, Florida 33169

Mr. Leroy Williams-El 10566 McLaurin Road

Jacksonville, Florida 32216

Gene T. Sellers, Esquire State Board of Education

Knott Building

Tallahassee, Florida 32301

Mr. Samuel R. Visconti Personnel Officer

Florida School for the Deaf and Blind

207 North San Marco Avenue St. Augustine, Florida 32084

Pamela Miles

Assistant General Counsel Department of Administration

438 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 85-003600

Orders for Case No: 85-003600