STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN C. SCOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2750

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on August 31, 1987, in Fort Lauderdale, Florida. The following appearances were entered:

For Petitioner: Patrick J. Curry, Esquire

200 Southeast Sixth Street, Suite 200 Fort Lauderdale, Florida 33301

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation Room 562, Haydon Burns Building Tallahassee, Florida 32399-0450

PROCEDURAL BACKGROUND

By letter dated June 5, 1987, the Respondent advised the Petitioner that he was being terminated from his Career Service position with the Department of Transportation for alleged abandonment of his job. By letter dated June 23, 1987, the Petitioner disputed the facts contained in the Respondent's letter of June 5, 1987, and requested a formal administrative hearing pursuant to Chapter 120, Florida Statutes.

At the formal hearing, the Petitioner testified in his own behalf but offered no documentary evidence. The Respondent offered the testimony of Robert Lucas and Alan Thomas. Respondent's Exhibits 1 through 6 were duly offered and admitted into evidence. The parties have submitted post-hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, John C. Scott, has been a Career Service employee with the Department of Transportation for approximately ten years, assigned to the Centerline Maintenance Office in Pompano Beach, Florida.

   
   

2. During all times material to these proceedings, Petitioner's immediate supervisor was Allen Thomas. Robert Lucas, Highway Maintenance Supervisor in

   charge of the District III Centerline Crew, is the Petitioner's second-level supervisor. Thomas and Lucas are the only individuals at the Centerline Maintenance Office authorized to approve leave for Petitioner.

   
   

3. On May 23, 1987, the Petitioner was arrested for D.U.I. and placed in jail for fifteen days. After the Petitioner was arrested, he called his mother and asked her to inform his supervisor at work that he had some personal business to attend to and would need annual leave.

   
   

4. On May 26, 1987, the Petitioner failed to report to work and had not previously requested leave from any of his supervisors.

   
   

5. On the morning of May 26, 1987, Ms. Scott, the Petitioner's mother, called Mr. Lucas and told him that her son would need a couple of days off from work because of personal business. Mr. Lucas informed Mrs. Scott that annual leave could not be authorized over the telephone for personal business but that leave could be granted for an emergency situation. Ms. Scott reiterated that the Petitioner had some personal business to take care of. Mr. Lucas advised her that annual leave could not be authorized over the telephone under those circumstances.

   
   

6. On June 1, 1987, Mr. Lucas was informed by Mr. Oshesky, the District Personnel Supervisor, that Petitioner's attorney had called and told him that Petitioner was in jail.

   
   

7. The Petitioner was absent from work on May 26, 27, 28, and June 1, 2, 3, and 4, 1987. May 29, 30 and 31, 1987 were non-work days for Petitioner. At the time, the Petitioner's work week consisted of four ten hour days from 7:30

   a.m. to 5:30 p.m.

   
   

8. The last day that Petitioner actually reported for work was Wednesday, May 20, 1987. However, on Thursday, May 21, 1987, the Petitioner was absent from work on authorized annual leave, May 22-24, 1987, were non-work days and on Monday, May 25, 1987, the Petitioner was absent from work due to an official holiday (8 hours) and authorized annual leave (2 hours).

   
   

9. On June 5, 1987, the Respondent advised Petitioner by certified mail, return receipt requested, that he was being terminated effective May 20, 1987, (Petitioner's last day at work) for abandonment of his position.

   
   

10. The Petitioner's absence from work and involvement with civilian authorities were related to an admitted alcohol problem. Since the Petitioner was released from jail, he has participated in a twenty-day in-patient substance abuse program at John F. Kennedy Hospital and is presently involved with a Fort Lauderdale after-care program.

    
    

11. The Petitioner had been provided with a Department of Transportation Employee Handbook by his employers. The Handbook outlined the requirements for annual leave and leave of absences without pay. The Handbook provides in part as follows:

    Annual Leave - Get your supervisor's approval before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work complete the leave request form, as appropriate.

    
    

    Leaves of Absence Without Pay - Upon request, you may be granted leave without pay ...

    for a period not to exceed twelve calendar months.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

13. Rule 22A-7.010(2)(a), Florida Administrative Code provides in pertinent part that:

    
    

    (2) Abandonment of Position -

    (a) an employee who is absent without authorized leave of absence for three consecutive work days shall be deemed to have abandoned the position and to

    have resigned from the career service...

    
    

14. Likewise, abandonment of position is defined in Rule 22A-14.001(1), Florida Administrative Code as follows:

    
    

    1. Abandonment of Position - the unauthorized absence by an employee from the employee's position for three consecutive work days.

       
       

15. Rule 22A-7.010(2)(a), Florida Administrative Code further provides that an employee who separates under such circumstances shall have the right to "petition" for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position. The term "unauthorized absence" is not defined by statute nor rule and, therefore, must be given its ordinary meaning and interpretation.

    
    

16. Rule 22A-8.022, Florida Administrative Code provides in part as follows:

    
    

    1. 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.

       1. When prior approval cannot be ob- tained by the employee due to such emergencies, the agency head shall take one of the following actions:

          1. Grant the employee leave with pay...

          2. Place the employee on leave without pay for the absence, or

          3. If the absence is for three (3) con- secutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.

    
    

17. The evidence established that the Petitioner was absent without authorized leave of absence for at least three consecutive work days. The Petitioner had been provided with a copy of the Employee Handbook and knew, or should have known, that he was required to contact his employer and obtain approval for annual leave, with or without pay, during the period of his incarceration. In addition, an employer is entitled to know the reasons that an employee requests emergency-type leave so that a proper decision on the request can be made. The Petitioner took a casual view toward his employment and merely asked his mother to inform his supervisor that he would need some time off for "personal business." There was no evidence that the Petitioner's access to the telephones were limited or restricted to the extent that he was not able to communicate directly with one of his supervisors. The Petitioner's supervisors were not made aware of the true reasons for Petitioner's failure to report to work until after the third consecutive day of the absence.

    
    

18. During the period in question, the Petitioner was absent without authorized leave for three (3) consecutive work days from his position in the Centerline Maintenance Office and was properly deemed to have abandoned his position and resigned from the Career Service. As the Court stated in Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. App. 1 Dist. 1978):

While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some point at which the Division may be able to say that the employee is not re- turning, process the paper work and re- fill the vacant position ... [A]ll Career Service employees [are put] on notice that absence without authorized leave for three consecutive days is tantamount to a formal resignation.

RECOMMENDATION

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

The Department of Administration enter a final order finding that the Petitioner, John C. Scott, has abandoned his Career Service position with the Department of Transportation.

DONE and ORDERED this 16th day of October, 1987, in Tallahassee, Florida.

W. MATTHEW STEVENSON 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 16th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2750

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

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 3.

3. Adopted in substance in Finding of Fact 3.

4. Partially adopted in substance in Findings of Fact 5 and

   6. Matters not contained therein are rejected as subordinate and/or unnecessary.

5. Rejected as contrary to the weight of the evidence.

6. Rejected as subordinate and/or unnecessary.

7. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate and/or unnecessary.

8. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as argument and/or subordinate.

9. Adopted in substance in Findings of Fact 3, 5, and 6.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Findings of Fact 1 and 2.

2. Adopted in Findings of Fact 4 and 5.

3. Adopted in Finding of Fact 11.

4. Adopted in Findings of Fact 7 and 9.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Hon. Kaye N. Henderson Department of Transportation Secretary

Room 562 Burns Building Department of Transportation Tallahassee, Florida 32399-0450 605 Suwannee Street

Tallahassee, Florida 32399-0458 Patrick J. Curry, Esquire Attn: Eleanor F. Turner,

200 Southeast Sixth Street M.S. 58 Suite 200

Ft. Lauderdale, Florida 32301 Adis Vila, Secretary

Department of Administration Thomas H. Bateman, III, Esquire 435 Carlton Building

General Counsel Tallahassee, Florida 32399-1550

562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458

Augustus D. Aikens, Jr., Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-002750

Orders for Case No: 87-002750