vs. ) CASE NO. 86-3929
Respondent. )
Pursuant to notice a formal hearing was conducted in this case on March 13, 1987, at Gainesville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
FOR PETITIONER: Carla D. Franklin, Esquire
Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615
The issue in this case is whether the Petitioner, Gloria Godbolt, should be deemed, pursuant to Rule 22A-7.010(2), Florida Administrative Code, to have abandoned her position of employment with the Respondent, University of Florida.
Following the filing of the Petitioner's Petition For Review, the Department of Administration proposed to issue an order dismissing the Petition as untimely filed. Following receipt of written arguments from both parties, including a motion to dismiss filed by the Respondent, the Department issued an order accepting the Petition and assigning it to the Division of Administrative Hearings for formal hearing. At the commencement of the formal hearing, the Respondent filed a renewed motion to dismiss the Petition as untimely. The Hearing Officer reserved ruling on the motion. Issues raised by the motion are addressed and disposed of in the Conclusions of Law portion of this Recommended Order.
Following the presentation of evidence at the formal hearing, the parties were allowed 15 days from the date of the hearing within which to file their proposed recommended orders. Both parties filed timely proposed recommended
orders containing proposed findings of fact and conclusions of law. The parties' proposed recommended orders have been carefully considered in the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact.
At all times material to this case, the Petitioner, Gloria Godbolt, was a Career Service employee of the Division of Finance and Accounting of the University of Florida. The last position held by Petitioner with the University of Florida was that of a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting.
Petitioner last reported to work at the University of Florida on April 25, 1986.
On April 27, 1986, the Petitioner called her sister, Ella Godbolt, collect from the Broward County jail. The Petitioner asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner was sick.
On April 28, 1986, and again on April 29, 1986, Petitioner's sister, Ella Godbolt, called the Petitioner's office to notify the Respondent that the Petitioner was sick and would not report to work on each of these two days. On April 30, 1986, Ella Godbolt told the Petitioner's supervisor, Grace Strawn, that the Petitioner was sick, that the Petitioner had a doctor's appointment for the following day, and that the Petitioner would not be at work for the rest of the week.
The Petitioner called her sister the following Sunday night, May 4, 1986, and asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner would not be at work that week, and that the Petitioner would explain everything later.
On Monday, May 5, 1986, Ella Godbolt again talked to Grace Strawn on the telephone and informed Strawn that the Petitioner would not be at work that week and that Petitioner would call later in the week to explain the reasons for her absence. The Petitioner did not call Grace Strawn during the week of May 5, 1986. From May 6, 1986, through May 16, 1986, both dates inclusive, neither the Petitioner nor anyone on her behalf communicated either orally or in writing with the Respondent to report that the Petitioner would be absent from work or to explain the reasons for the Petitioner's absence.
The Petitioner was advised by her attorney Michael Swan, that she should not report the fact of her arrest and confinement to anyone. However, that advice was not given to her until approximately one week after her incarceration.
From April 26, 1986, through May 16, 1986, the Petitioner was incarcerated in Broward County, Florida, and, because of that incarceration, was unable to report to work on any of those days. During her period of incarceration, the Petitioner had access to a telephone which could be used to
make "collect" long distance calls and she also had available the means necessary to write and mail a letter to her employer. The Petitioner neither called nor wrote to her employer to report her absence or to request appropriate leave. Instead, the Petitioner arranged for her sister to call the Petitioner's employer during the Petitioner's first week of absence to falsely report that the Petitioner was sick and to request sick leave for her absence. Based on these false representations, the Petitioner was granted sick leave for the first week of her absence.
On May 17, 1986, which was a Saturday, the Petitioner returned to Gainesville. Upon learning that some of the employees in her department were working that day, the Petitioner went to her workplace to ask about her job. Her supervisor, Grace Strawn, told the Petitioner that it was out of her hands. The Petitioner did not explain to Strawn that she had been incarcerated and had not been sick. Again, on May 19, 1986, when the Petitioner talked with Cynthia Fidalgo Evans, Associate University Controller, asking what she could do to get her job back, she misrepresented to Ms. Evans that she had been hospitalized in Broward County. It was not until May 30, 1986, two weeks after the Petitioner
had been released from jail, that the Petitioner corrected the record by stating in a letter to William Zeanah, Assistant University Controller, that she had been incarcerated and not sick as previously reported.
The Petitioner was aware that she had to let her employer know if she was going to be absent from work and obtain appropriate leave for her absence. She was also aware that three consecutive workdays of unauthorized leave were considered job abandonment by the Respondent. On September 15, 1980, when the Petitioner was first employed, she signed a statement acknowledging receipt of the Career Service Employee Handbook of the University of Florida. This handbook provides at page 27:
If you must be unavoidably absent from your job (that is, other than planned vacations or personal business times that have been approved in advance), let your supervisor know as soon as possible on the first day of absence why you must be absent and when you expect to return. If your anticipated return date changes, keep your supervisor informed. Unapproved absences for three consecutive workdays are considered job abandonment and, therefore, voluntary resignation. .
The Respondent has consistently notified employees who have been on unauthorized leave for three consecutive workdays that they are considered to have abandoned their jobs and to have voluntarily resigned from the Career Service system.
The Respondent needed to know if and when it could expect the Petitioner to report to work in order to make appropriate arrangements to have her work done in a timely fashion during her absence. As a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting, the Petitioner processed the necessary documents to pay vendors for the foods and services they provided to Respondent. Petitioner's task was the last step performed by Respondent before submitting vendors' invoices to the State Comptroller for payment by the issuance of warrants.
The Petitioner was therefore aware of the importance of her job and of Respondent's need to have her job performed within specified time constraints. Petitioner was further aware that the Respondent is required by law to process vendors' invoices during a 15-day period and that failure to do so could result in penalties being imposed against the Respondent and disciplinary action taken against employees who persistently fail to process vendors' invoices in a timely fashion. Due to Petitioner's long and continuous unreported absence, Petitioner's supervisor had to work two consecutive Saturdays with other members of her staff in order to process vendors' invoices within the five-day period allotted to her office to accomplish that task.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.
Rule 22A1-7.010(2)(a), Florida Administrative Code, reads 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 Service. An employee who has Career Service status and 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 for a review of the facts of the case and a ruling as to whether the circumstances constitute abandonment of position.
The effect of the foregoing rule provision was described as follows in the recommended order in Clara Penny v. Department of Insurance, DOAH Case No. 85-1530 (Recommended Order 12/26/85; adopted in Final Order 1/31/86):
This rule ... creates a presumption that an employee who is absent from work for the prescribed period of time without authorized leave has abandoned his or her position and, in effect, has resigned from the Career Service... However, the presumption
created by the abandonment rule is a rebuttable presumption.
The Penny case, supra, also contains an extensive discussion of other cases which have construed Rule 22A-7.010(2)(a).
The applicable procedures to be followed in such cases are set forth in Rule 22A-7.010-(2)(b), Florida Administrative Code, which reads as follows, in pertinent part:
Each employee separated under
conditions of abandonment of position shall be notified in writing by the agency head or the agency head's designee. Notification shall be given by delivering a copy to the employee or by mailing a copy by certified mail, return receipt requested, to the employee's last-known address. Such notification shall inform the employee of the rights to petition for review of the agency's action as provided in this rule.
The employee may petition the department for review of the action taken by the
employing agency only within 20 calendar days after the date that written notification is effectuated.
A petition is timely made under this rule
if postmarked within the 20-day period or if physically received in the Office of the Secretary of the department within the 20-day period.
Rule 22A-8.002(5), Florida Administrative Code, reads 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.
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 leave 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.
Directing attention to the Respondent's Motion To Dismiss which was renewed at the commencement of the formal hearing, the motion is denied for the same reasons as those set forth in the Order Accepting Petition And Assignment To The Division Of Administrative Hearings issued by the Secretary of the Department of Administration on October 1, 1986. When viewed in its totality,
the information contained in the Respondent's letter of May 15, 1986, is simply too ambiguous to afford the Petitioner a clear point of entry into the 120.57 process. The Petitioner did not have a clear point of entry until the University's final letter of June 5, 1986.
The Petitioner was absent without authorized leave for the three consecutive workdays of May 12, 13, and 14, 1986, which under Rule 22A-7.010(2), Florida Administrative Code, constitutes job abandonment. That such unauthorized absence constituted abandonment of her position is also supported by the facts that on Monday, May 5, the Petitioner left a message with her employer stating that she would contact her employer concerning her absence, but failed to do so; that she did not come to work on May 15 and 16; and that she did not notify Respondent that she would be absent on those days or of the reasons for her absence on those days.
The Petitioner was obligated to request a leave of absence for the time she was incarcerated and to keep the Respondent advised of her leave status. Florida State University v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983). The Petitioner failed to meet that obligation and there were no circumstances presented which justify her failure to do so. The fact that the Petitioner was incarcerated did not preclude her from communicating with the Respondent.
Respondent acted in accordance with the Requirements of Rule 22A- 7.010(2), Florida Administrative Code, in concluding that Petitioner had abandoned her position and voluntarily resigned from the Career Service due to her unauthorized absence of May 12, 13, and 14, 1986. Florida State University
Carla D. Franklin, Esquire Rodney W. Smith, P.A.
Augustus D. Aikens, General Counsel Department of Administration
