STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN A. FRITZ, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0624

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 2, 1986, in Fort Lauderdale, Florida.

Petitioner John A. Fritz, Fort Lauderdale, Florida, represented himself, and Respondent Department of Transportation was represented by Vernon L. Whittier, Jr. Esquire, Tallahassee Florida.

By letter dated December 19, 1985, Respondent advised Petitioner that, due to his failure to report for work, he had abandoned his position of employment and was deemed to have resigned from the Career Service. Petitioner requested a formal hearing on that determination. Accordingly, the issue in this cause is whether Petitioner abandoned his position of employment with Respondent and therefore his position in the Career Service.

Petitioner John A. Fritz testified on his own behalf, and Petitioner's Composite Exhibit numbered 1 was admitted in evidence.

Respondent Department of Transportation presented the testimony of Charles

1. Gruner, Selma Schoenfeld, Joseph Soucy, Keith Dawes and Willam H. Albaugh. Additionally, Respondent's Exhibits numbered 1-11 were admitted in evidence. Respondent's post-hearing Motion to Correct Index of Record so as to reflect that all of Respondent's exhibits were admitted in evidence be and the same is hereby granted.

   
   

   Both parties submitted proposed findings of fact in the form of a proposed recommended order. A ruling on each proposed finding of fact appears in the Appendix to this Recommended Order.

   
   

   Only the Respondent submitted proposed findings of fact in the form of a proposed recommended order. Respondent's proposed findings of fact numbered 1, 2, 5 and 6 have been adopted in substance. Respondent's proposed findings of fact numbered 3 and 4 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony. Respondent's proposed finding of fact numbered 7 has been rejected as being irrelevant.

   FINDINGS OF FACT

   
   

   1. Petitioner John A. Fritz was employed by Respondent Department of Transportation for approximately four years, working on a bridge crew from the Fort Lauderdale maintenance yard.

      
      

   2. On June 23, 1985, Petitioner was placed on workers' compensation disability leave; he returned to his normal duties on July 15, 1985. He was again placed on workers' compensation disability leave on July 26, 1985. During the week before Monday, December 16, 1985, Petitioner presented to Respondent a note from his treating physician stating that Petitioner was ready to return to work performing his regular duties on Monday, December 16, 1985.

      
      

   3. Petitioner did not report for work on Monday morning and did not contact Respondent regarding his failure to report to work until approximately lunch time when he telephoned Joseph Soucy, operations engineer. Petitioner advised Soucy that he was in jail, that he needed Soucy to contact Petitioner's credit union to obtain $200 bail money but that Soucy should contact the bail bondsman first. Soucy telephoned Petitioner's bail bondsman and found out that

      $200 was not what the bondsman needed; rather, the bondsman was requiring the deed to Petitioner's home as collateral. When Soucy telephoned the jail to relay the information to Petitioner, he was unable to speak to Petitioner directly but left a message explaining that the bail money would not be coming from the credit union since the bondsman required the deed to Petitioner's home.

      
      

   4. During the conversation that Petitioner had with Soucy, Soucy advised Petitioner that Petitioner was expected to report to work on the 16th of December and that if he did not do so, he would be considered absent without leave.

      
      

   5. Petitioner remained in jail until approximately December 23, 1985. He did not report for work on December 16, 17, or 18, 1985.

      
      

   6. After Petitioner's telephone call to Soucy on December 16, 1985, requesting Soucy's assistance in arranging his bail, Petitioner had no contact with the Department of Transportation until January 7, 1986, when he acknowledged receipt of the letter of termination sent to him by Respondent by certified mail, return receipt requested.

      
      

   7. On April 25, 1983, Petitioner signed an Acknowledgment of Receipt of the Florida Department of Transportation Employee Handbook. That handbook advises employees, on page 43, that an unauthorized leave of absence for three consecutive days will result in the Department considering the employee to have abandoned his position and to have resigned from the Career Service.

      
      

   8. Petitioner had previously requested leave, following all proper procedures, on previous occasions during the calendar year 1985. He did not, however, request leave nor was any authorized for December 16, 17, or 18, 1985. Further, Petitioner did not request leave nor was any leave authorized for the entire time period of December 16, 1985, through January 7, 1986, when Petitioner again contacted the Department of Transportation.

      
      

   9. On December 19, 1985, Respondent advised Petitioner that he was terminated from his employment with the Department of Transportation effective December 18, 1985, at 4:30 p.m. for abandonment of his position for failing to report for work since December 16, 1985, and for failing to advise his supervisor of his intention relative to his job.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

       
       

   11. Section, 22A-7.10(2)(a); Florida Administrative Code, provides as follows:

       
       

       (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. An employee who separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition the Department of Administration for a review of the facts in the case and ruling as to whether the circumstances constitute abandonment of position.

       
       

   12. Further Section 22A-8.02(5), Florida Administrative Code, provides as follows:

       
       

       (5) 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.

       
       

   13. Petitioner offered no evidence to show that he had as of December 16, 1985, any accrued leave credits to cover his absence. Even if he had accrued leave credits to cover his absence, Petitioner never requested leave. Since Petitioner was not present at his work station at anytime during the work days of December 16, 17, and 18, 1985, and since he did not request or obtain authorized leave for those absences, Petitioner was properly placed on unauthorized leave of absence for each of those three days. Department of Transportation employee Soucy advised Petitioner that he was to return for work on December 16, and that if hem did not, he would be considered absent without leave. The Department was under no duty to notify Petitioner that he was on unauthorized leave of absence on December 16, 17, and 18, and the Department was under no obligation to assist Petitioner in obtaining his release from jail. Therefore, the evidence in this cause clearly reveals that Petitioner was absent without authorized leave for three consecutive work days and is, therefore, deemed to have abandoned his position and to have resigned from the Career Service.

       
       

   14. Petitioner's argument of "extenuating circumstances" is irrelevant since the personnel rules do not provide for the consideration of extenuating circumstances when an employee fails to report to work for three consecutive days. Moreover, Petitioner's position ignores the fact that Petitioner made no

contact with Department of Transportation employees between December 16, 1985 and January 7, 1986, when he received the letter of termination which had been sent to him by certified mail, return receipt requested. Clearly, Petitioner's prolonged failure to report to work covers a far greater period of time than the three consecutive days required under the personnel rules. for [sic] a determination of abandonment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding that Petitioner abandoned his position with the Department of Transportation and resigned from the Career Service.

DONE and RECOMMENDED this 9th day of June, 1986, at Tallahassee Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1986.

COPIES FURNISHED:

Gilda A. Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Vernon L. Whittier Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

John A. Fritz

301 N.W. 51 Court

Fort Lauderdale, Florida 33309

Augustus D. Aikens, General Counsel Department of Administration

530 Carlton Building Tallahassee Florida 32301

Docket for Case No: 86-000624

Orders for Case No: 86-000624