STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5557

)

WILLIE C. HAGGINS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 9, 1988 in Fort Pierce, Florida.

APPEARANCES

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

Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450

For Respondent: Willie C. Haggins, pro se

1212 Avenue I

Fort Pierce, Florida 34950 BACKGROUND

This matter arose when petitioner, Department of Transportation (DOT), through its Fort Lauderdale district office, issued proposed agency action on October 15, 1987 advising respondent, Willie C. Haggins, that he was terminated from his job effective October 7, 1987 by virtue of having been absent without authorized leave for three consecutive workdays. Thereafter, by letter dated October 29, 1987, respondent requested a formal hearing to contest the agency's action. The matter was transmitted to the Division of Administrative Hearings by the Department of Administration on December 10, 1987 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated January 11, 1988 a final hearing was scheduled on February 9, 1988 in Fort Pierce, Florida. At final hearing petitioner presented the testimony of James C. Hauke, George A. Wharton and Raymond C. Roberts, all DOT employees, and offered petitioner's exhibits 1-5. All exhibits were received in evidence. Respondent testified on his own behalf and offered respondent's composite exhibit 1 which was received in evidence.

The transcript of hearing was filed on March 16, 1988. Proposed findings of fact and conclusions of law were filed by petitioner on March 28, 1988. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

The issue is whether respondent abandoned his job by being absent from work on three consecutive workdays without authorization.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Willie C. Haggins, began his employment with petitioner, Department of Transportation (DOT), in 1983. He held the position of bridge tender operator on the Indian River Bridge, a draw bridge in Martin County, Florida. Prior to employment with DOT, Haggins was employed by Ebasco Services. In April, 1980 Haggins suffered an injury to his left leg. The nature and extent of such injury is not of record.

   
   

2. During the course of his employment with DOT, and in particular in October, 1984 and September, 1986, Haggins was specifically told that personnel rules and regulations must be followed when taking leave. Among other things, he was told that he must obtain approval for leave prior to it being taken.

   
   

3. Respondent last appeared at work on June 8, 1987 when he completed a full shift. On June 9 he called in sick and sent his supervisor, George Wharton, a note from Dr. Andrew F. Greene, an orthopedic surgeon in Stuart, Florida. The note stated as follows: "No work until further notice." The note did not give the nature of Haggins' ailment, but at hearing Haggins indicated it related to the injury he had suffered in 1980. Haggins was accordingly authorized by Wharton to take leave at that time.

   
   

4. Haggins never returned to work after June 8. Under DOT policy, and in accordance with Rule 22A-8.011(2)(e), Florida Administrative Code (1987), an employee who is absent because of illness or injury for ten consecutive days must furnish his employer a medical certification from a physician. The employee must also furnish additional certifications for each thirty consecutive days of absence thereafter. Haggins was aware of these requirements. At hearing, DOT acknowledged that it did not strictly follow the thirty day time frame but generally allowed an employee an extra five or ten days, if necessary, to file the certification.

   
   

5. After the first thirty day period had run, and no certification had been filed, Wharton attempted to telephone Haggins on several occasions to advise him that a medical certificate was needed. Although Wharton was unable to personally talk to Haggins, he left several messages with Haggins' wife or daughter asking that Haggins either contact him concerning the absence or have a medical certificate brought to the DOT office. In response to Wharton's request, Haggins, through his wife, delivered a doctor's note to DOT on July 24. The note was dated July 22 and stated that "Mr. Haggins will return to see Dr. Greene on Thursday, August 6th. He will be unable to work until at least that date." The note carried a signature purporting to be that of Dr. Greene.

   
   

6. On or about August 17, 1987 DOT received another note carrying what purported to be Dr. Greene's signature. It was dated August 11 and stated that "Mr. Haggins will be unable to work until at least Thursday, Sept. 17th, 1987."

   
   

7. When Wharton did not hear from Haggins by September 17, he began leaving messages for Haggins advising him to either contact him or furnish another doctor's note. By September 26, 1987 Haggins had exhausted all of his sick and annual leave. He had also failed to contact his supervisor or furnish

   a medical certification as requested by Wharton. Because of this, beginning on September 27, and each workday thereafter, DOT considered Haggins to be absent without authorization. After not hearing from Haggins by October 15, DOT advised Haggins by certified mail that he had abandoned his job by being absent from work for three consecutive workdays after September 27, 1987 without authorization and that such termination was effective October 7, 1987. By letter dated October 29, 1987 Haggins requested a hearing to contest this action. That prompted this proceeding.

   
   

8. At hearing Haggins suggested that DOT was simply using his absence as an excuse for firing him. However, he did not deny that he failed to obtain his supervisor's approval for taking leave on and after September 27, 1987. To justify his continued absence, at hearing Haggins submitted a note purportedly authored by Dr. Greene's nurse and sent to one Vincent A. Lloyd, P.A., advising that Dr. Greene had cancelled Haggins' appointment on September 17, 1987 and rescheduled the same for October 7, 1987. Haggins also submitted an unsigned letter dated October 28, 1987 and typed on Dr. Greene's stationery which stated that Haggins was "temporarily totally disabled for the foreseeable future." However, even if these notes were authentic and true, they were not submitted to DOT on a timely basis as required by DOT policy and Department of Administration rule. Further, Haggins did not contact his supervisor or any other DOT employee after September 26 to explain his circumstances or obtain authorization to continue his leave of absence. Therefore, the agency properly considered Haggins to have abandoned his job.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has juris-diction over the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

10. This action was initiated under Rule 22A-7.010(2), Florida Administrative Code (1987). That rule reads in pertinent part as follows:

    
    

    (2) Abandonment of Position.

    1. *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 Public Employees Relations Commission; however, any such employee shall have the right to petition the department for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

       (Emphasis added between *)

       Also relevant to this proceeding are Rules 22A-8.002 and 22A-8.011, Florida Administrative Code (1987). They provide in relevant part as follows:

       
       

       22A-8.002 Statements of Policy.

       * * *

       (5) Any leave of absence with or without pay shall be approved prior to the leave being taken . . .

       * * *

    2. If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the agency 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.

    * * * 22A-8.011 Sick Leave.

    * * *

    (2) Use of earned sick leave.

    (e) Upon request, an employee shall be allowed to use accrued sick leave credits as provided in this section:

    * * *

    4. After 10 consecutive days of absence, the employee shall submit to the agency head a medical certification from the attending physician before any additional use of sick leave credits can be authorized for the employee. If the employee continues to be absent, the agency head shall require further medical certification for each 30 consecutive days of absence, unless the agency head has personal knowledge that the employee is hospitalized and unable to return to

    work . . .

    6. An employee who, upon request by the agency head, refuses to comply with these rules shall not be eligible to use accrued sick leave credits, and any absence from work shall be hand.led in accordance with Section 22A-8.002(5).

    
    

    Stated in clearer terms, an employee must obtain approval for any leave of absence prior to the leave being taken. If absent for ten consecutive days, the employee must submit a "medical certification" to the agency. If the absence continues, the employee must furnish a new certification for each thirty days of absence thereafter. A failure to comply with any of the foregoing requirements renders such leave "unauthorized," and after being absent from work for three consecutive days without authorization, the employee is deemed to have abandoned his job.

    
    

11. The evidence reflects that respondent was absent from work beginning on June 9, 1987 and did not return. Such leave was authorized until September

17 (or September 27 if given an extra ten days under DOT's informal policy) by virtue of Haggins having obtained authorization to initially go on leave and

thereafter filing medical certificates on July 24 and August 17, 1987. However, after September 27 he failed to contact his supervisor concerning his absence or to submit a medical certificate. As of the end of the workday on September 29, Haggins had been absent for three consecutive workdays without authorization.

Although at hearing respondent submitted a letter purportedly written by Dr. Greene on October 28, this was long after a medical certification was due.

Further, Haggins made no effort to contact his supervisor to explain his circumstances and request additional leave. Moreover, there was no obligation on the part of the agency to seek out Haggins and determine if he planned to return to work. John A. Fritz v. Department of Transportation, DOAH Case No. 86-0624 (FDOT, July 31, 1986). Finally, even if in the past DOT had "loosely" enforced the rule requiring medical certifications every thirty days, DOT was not equitably estopped from denying that the employee was authorized to take

leave. State, Department of Transportation v. Clancy, 13 FLW 676 (Fla. 2nd DCA, March 11, 1988). Therefore, respondent abandoned his job within the meaning of Rule 22A-7.010(2), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that respondent abandoned

his job as bridge tender with the Department of Transportation within the meaning of Rule 22A-7.010(2), Florida Administrative Code (1987).

DONE AND ORDERED this 1st day of April, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 1st day of April, 1988.

APPENDIX

Petitioner:

1. Covered in findings of fact 1 and 3.

2. Covered in findings of fact 3-7.

3. Covered in findings of fact 3-7.

4. Covered in findings of fact 4-7.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450

Mr. Willie C. Haggins 1212 Avenue I

Fort Pierce, Florida 34950

Adis M. Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Pamela Miles, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-005557

Orders for Case No: 87-005557