STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4148

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 17, 1987, in Jacksonville, Florida.

The Petitioner, Larry Williams, represented himself at the formal hearing. The Respondent, the Department of Transportation (hereinafter referred to as the "Department"), was represented by Charles G. Gardner, Esquire.

INTRODUCTION

By letter dated August 5, 1987, the Department notified Mr. Williams that he had been removed from his position with the Department effective August 4, 1987, pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code. By letter dated August 17, 1987, Mr. Williams requested a formal hearing to contest the proposed action of the Department. By Order dated September 21, 1987, the request for hearing was accepted and forwarded to the Division of Administrative Hearings.

At the formal hearing the Department presented the testimony of Larry G. Collins, James M. Griffis, George C. Carter and Jesse A. Mann. "DOT" exhibits 1-10 were also accepted into evidence.

Mr. Williams testified on his own behalf. "Petitioner's" exhibit 1 was accepted into evidence.

Neither of the parties filed proposed findings of fact.

ISSUE

Whether Larry Williams abandoned his position of employment with the Department?

FINDINGS OF FACT

1. Larry Williams worked for the Department for approximately 7 years. During the portion of 1987 that Mr. Williams worked for the Department he was employed as a Supervisor 1.

2. Mr. Williams received a copy of an Employee Handbook upon his employment with the Department. The Employee Handbook informed the Petitioner of the rules governing absences from work, including the Department's rule that an employee will be treated as having abandoned his position if the employee is absent for 3 consecutive workdays without authorized leave.

   
   

3. Prior to May 29, 1987, Mr. Williams was assigned to a Bridge Unit of the Department. The Bridge Unit worked out of the Ellis Road yard of the Department located in Jacksonville, Duval County, Florida.

   
   

4. Duval County is part of the Department's District Second.

   
   

5. By Memorandum dated May 21, 1987, Mr. Williams was informed that he was being reassigned from the Bridge Unit to the Jacksonville Maintenance Unit. He was ordered to report to the Department's sub-maintenance yard at Doctor's Inlet on May 29, 1987. Doctor's Inlet is located in Clay County, Florida.

   
   

6. The supervisor of the Doctor's Inlet yard was G. C. Carter. James M. Griffis, a technician at the time at issue in this proceeding also worked at the Doctor's Inlet yard. During the period of time that Mr. Williams was assigned to the Doctor's Inlet yard he occupied a supervisory position between Mr. Carter and Mr. Griffis. Despite this fact, when Mr. Carter was absent from work, Mr. Griffis was placed in charge. This created a problem with Mr. Williams which he discussed with Department employees with supervisory authority over Mr. Carter. Although some efforts were made, the problem was not rectified.

   
   

7. On July 30, 1987, Mr. Williams went to the Ellis Road yard and asked to speak with Jesse A. Mann, Mr. Carter's immediate supervisor. Mr. Williams indicated that he was having car troubles and asked if he could work out of the Ellis Road yard that day instead of going to Doctor's Inlet. Mr. Mann informed Mr. Williams that his assigned station was Doctor's Inlet and denied the request. Mr. Williams also asked for permission to drive a Department vehicle to Doctor's Inlet. This request was also denied. Although Department employees had been allowed to use Department vehicles to travel from Ellis Road to other locations, the evidence failed to prove that employees had been allowed to use Department vehicles because their cars had broken down.

   
   

8. Mr. Mann told Mr. Williams that he could take a couple of days off in order to get his car repaired. Mr. Mann was authorized to approve leave for Mr. Williams. Mr. Williams told Mr. Mann that he did no have the money to get his car repaired and left without indicating whether he would take time off or not.

   
   

9. On Friday, July 31, 1987, Mr. Williams did not report to work. Nor did Mr. Williams notify the Department that he would not be at work that day.

   
   

10. On Monday, August 3, 1987, and Tuesday, August 4, 1987, the next working days after July 31, 1987, Mr. Williams did not report to work. Again, Mr. Williams did not notify the Department that he would not be at work.

    
    

11. On occasions when Mr. Williams has taken approved leave in the past, his absence has been approved verbally. Only after Mr. Williams has returned from those absences has a written approval form been executed by the Department and Mr. Williams.

    
    

12. By letter dated August 5, 1987, the Department notified Mr. Williams that he had been removed from his position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code.

13. By letter dated August 12, 1987, Mr. Williams requested a formal hearing to contest the Department's decision.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

15. Mr. Williams has been dismissed from his employment with the Department because of his failure to report to work for three consecutive work days. The Department dismissed Mr. Williams pursuant to the authority of Rule 22A-7.010(2)(a), Florida Administrative Code, which provides, in pertinent part:

    
    

    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.

    
    

16. The circumstances under which an employee may be absent with leave is governed by Chapter 22A-8, Florida Administrative Code. In particular, Rule 22A-8.002(5), Florida Administrative Code, provides, in pertinent part:

    
    

    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.

    
    

17. Pursuant to this Rule, employees must generally obtain prior approval for any leave or absence unless the absence is caused by an emergency.

    
    

18. The evidence in this case proved that Mr. Williams was absent from his position with the Department for three consecutive workdays: July 31, 1987, August 3, 1987 and August 4, 1987. The evidence also proved that Mr. Williams did not receive written approval for his absence during this period of time.

    The failure to obtain prior written approval is not fatal, however, because the Department has consistently allowed Mr. Williams to take leave in the past based only on prior oral approval followed by written approval after his return to work.

    
    

19. At issue in this case is the question of whether Mr. Williams obtained approval for his three day absence or any part thereof. If so, Mr. Williams cannot be treated as having abandoned his position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code.

    
    

20. No evidence was presented in this case to indicate that any approval was ever given to Mr. Williams for his absence on August 3 or 4, 1987. The crucial question is, therefore, whether Mr. Williams was given permission by Mr. Mann to be absent on July 31, 1987. Based upon the weight of the evidence, it is concluded that Mr. Williams was granted permission to take leave on Friday, July 31, 1987, by Mr. Mann. On July 30, 1937, Mr. Mann told Mr. Williams that if he needed a couple of days off to get his car fix he could do so. Although Mr. Williams said that he did not have the money to do so and failed to

    specifically say that he would in fact take time off, it is reasonable to conclude that Mr. Williams failed to come to work on Friday, July 31, 1987, because he believed that Mr. Mann had approved leave for that day. In effect, Mr. Mann granted approval for Mr. Williams' absence without Mr. Williams ever requesting it. Therefore, approval for Mr. Williams' absence on July 31, 1987, was given by the Department.

    
    

21. Employees of the Department involved in this case have chosen in the past to grant approved leave in a more relaxed manner than required by the Department's rules. It would, therefore, be unreasonable to now treat Mr. Williams as having been absent on July 31, 1987, from his job without approved leave because he failed to obtain approval in writing or because he failed to indicate that he would in fact take the time off that had been approved by the Department through Mr. Mann.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner,

Larry Williams, has not abandoned his career service position with the Department.

DONE and ENTERED this 16th day of February, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 February, 1988.

COPIES FURNISHED:

Larry Williams Kaye Henderson, P.E., Secretary

617 West 44th Street Department of Transportation

Apartment 191 Haydon Burns Building Jacksonville, Florida 32208 605 Suwannee Street

Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Attn: Eleanor F. Turner, M.S. 58 Department of Transportation

Haydon Burns Building Augustus D. Aikens, Jr.

605 Suwannee Street General Counsel Tallahassee, Florida 32399-0450 435 Carlton Building

Tallahassee, Florida 32399-1550

Adis Vila, Secretary

Department of Administration Thomas H. Bateman, III

435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Building

Tallahassee, Florida 32399-0450

Docket for Case No: 87-004148

Orders for Case No: 87-004148