STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM GRlMSLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1183

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on May 31, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioner: James A. Tucker, Esquire

Florida Rural Legal Services 2209 Euclid Avenue

Fort Myers, Florida 33901

For Respondent: Anthony N. DeLuccia, Jr., Esquire

District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906

STATEMENT OF THE ISSUES

Whether the Petitioner abandoned his position as a state employee.

PRELIMINARY STATEMENT

By letter dated January 11, 1989, the Respondent, Department of Health and Rehabilitative Services (hereinafter the Department), notified the Petitioner, William Grimsley (hereinafter Grimsley), that he was separated from employment as a Public Assistance Specialist I because he was absent without leave for three consecutive days and was thereafter deemed to have abandoned his position and to have resigned from the Career Service System. The Respondent Grimsley requested a formal hearing to challenge the determination that he had abandoned his position.

During the hearing, the Respondent called three witnesses and submitted one exhibit during direct examination. The Petitioner presented two witnesses, three exhibits and testified in his own behalf. In rebuttal, the Respondent recalled one witness, and submitted one additional exhibit. The Respondent was

given leave to file a transcript of prior sworn testimony after the hearing if the recording of the testimony could be located. The Petitioner was granted leave to present one more witness before the close of testimony as new matters were addressed during the Respondent's presentation of rebuttal testimony. A transcript of the prior sworn testimony and a tape of the testimony were filed with the Hearing Officer on July 17, 1989, as Respondent's Exhibit 3. All of the exhibits were admitted into evidence without objection.

A transcript of the proceedings was not ordered. Both parties submitted proposed recommended orders. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issue of abandonment in these proceedings, Petitioner William Grimsley was a Career Service Employee, employed by the Department of Health and Rehabilitative Services at Fort Myers, Florida, as a Public Assistance Specialist I.

   
   

2. On January 4, 1989, the Petitioner learned that his father's brother had died in Georgia. Petitioner Grimsley requested one day of authorized leave from his supervisor in order to drive his father to the funeral in Colquitt, Georgia. The Petitioner's father was unable to drive himself to Georgia because of his heart condition, and the extreme stress he was under due to the fact that his wife's two children were in critical condition in Shand's hospital in Gainesville, Florida, during this time period. The Petitioner's father had recently suffered a heart attack, and was under doctor's orders not to drive alone for extended periods of time.

   
   

3. When the Petitioner requested one day's leave for January 5, 1989, he anticipated that he would be able to return to work on January 9, 1989. The Petitioner was on a four-day work week, and the one day's leave gave him the opportunity to accomplish his task within a four-day time period.

   
   

4. After the Petitioner and his father arrived in Georgia, they learned that there had been two other deaths in the family. On Saturday, January 7, 1989, the Petitioner attended his cousin's funeral. On Sunday, January 8, 1989, the Petitioner attended his uncle's funeral. On Monday, January 9, 1989, he attended his great aunt's funeral.

   
   

5. As the family lives in a rural and impoverished area in Georgia, the Petitioner did not have access to a telephone until he drove into Bainbridge, Georgia, on January 9, 1989.

   
   

6. The Petitioner was without money during his attempts to telephone his office from Bainbridge, Georgia. According to Petitioner, his money was stolen from his wallet by one of his deceased uncle's children during the funeral services. The Petitioner did not tell his father of the incident due to the current tension between his deceased uncle's children and the uncle's widow regarding the disposition of life insurance proceeds. The Petitioner's father was under enough stress, and the Petitioner believed he could contact his office without having to spend money.

   
   

7. The Petitioner's attempt to charge the call to his home phone was unsuccessful because there was no one at his home to verify that he was authorized to charge calls to that telephone number.

8. The Petitioner's attempt to place a collect call to his employer was unsuccessful because the Department refused to accept the collect call placed by the Petitioner.

   
   

9. The Petitioner then placed a collect call to his mother's home in Fort Myers, Florida. Once his call was accepted, the Petitioner asked to speak to his sister, Iris Hill. Ms. Hill was instructed to contact the Petitioner's supervisor to inform her of the situation in Georgia. The Petitioner had to attend three funerals as opposed to one funeral, and his uncle's widow was in need of his father's assistance. No time frame was given to the Petitioner's sister regarding his anticipated return. His sister assured him that she would contact his supervisor to relay his message.

   
   

10. The Petitioner's sister attempted to contact his supervisor by telephone several times, as she had been instructed. However, she was unsuccessful, and did not make contact until after her brother had returned to work on January 12, 1989. During her conversation with the supervisor, Petitioner's sister, Miss Hill, was surprised to learn that the Petitioner had returned to work that morning after driving from Georgia earlier that day.

    
    

11. Upon his return to work, the Petitioner was informed that a Notice of Abandonment had been filed, and that he had been separated from his employment with the Department due to his absence without authorized leave for three consecutive work days.

    
    

12. The Petitioner did not intend to abandon his position when he remained in Georgia for three additional days in order to assist his father in family matters. The Petitioner reasonably believed his supervisor had been informed of the reasons for his absence on Monday, January 9, 1989, and that he would return to work as soon as possible.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(l), Florida Statutes, and Rule 22A-7.0l0(2), Florida Administrative Code.

    
    

14. This case revolves around the determination of the factual issue of whether the Petitioner abandoned his position by being absent for three consecutive days without authorized leave, contrary to Rule 22A-8.002(5)(a)3, Florida Administrative Code. Sections 110.201(2), and 110.219(5), Florida Statutes.

    
    

15. The conduct of the Petitioner does not indicate an intention to abandon his position. Prior to his departure for Georgia, he requested permission to take authorized leave from his supervisor. The Petitioner explained the purpose of his trip and his anticipated return to work on Monday, January 9, 1989. Due to the unforeseen circumstances regarding the additional funerals on January 9, 1989, the Petitioner's trip was extended. Imprudent as his decision may have been to rely on his sister to contact his supervisor about his need for extended leave, he chose this course of action only after he had unsuccessfully tried to charge a telephone call to his own home and had attempted to place a collect call to the Department which was not accepted.

    
    

16. Testimony at hearing revealed that the Petitioner relied on his sister to communicate the reasons he was unable to return to work on Monday, January 9, 1989. Good faith reliance on a third party by the Petitioner is a factor which

weighs in his favor in a determination of whether or not he intended to abandon his position during a three-day absence without authorized leave. See Tucker v. Department of Commerce, 366 So.2d 286 (Fla. 2d DCA 1975).

Whether the Petitioner's sister was truthful in her assertion that she made several calls to Petitioner's supervisor and left a message to return her call begs the ultimate issue in this case: the Petitioner's intention to abandon his position. The Petitioner's stated attempts to contact his employer throughout his family ordeal of three funerals in a short period of time and his sister's testimony that she was told to contact his employer on January 9, 1989, are believed by the Hearing Officer.

RECOMMENDATION

Based upon the evidence, it is RECOMMENDED:

1. That the Secretary of the Department of Administration issue a Final Order that Petitioner did not abandon his position in the Career Service System.

   
   

2. That the Petitioner be reinstated to his position as a Public Assistance Specialist I with all rights and privileges attendant to that position before the dismissal date of January 11, 1989, and subsequent to that date.

DONE and ENTERED this 9th day of August, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1183

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #2 and #3.

3. Accepted. See HO #2.

4. Rejected. Irrelevant.

5. Accepted. See HO #4.

6. Accepted. See HO #4.

7. Accepted. See HO #4.

8. Accepted. See HO #4.

9. Rejected. Irrelevant.

10. Rejected. Irrelevant.

11. Accepted. See HO #5.

12. Accepted. See HO #6 and #7

13. Accepted. See HO #8.

14. Accepted. See HO #8.

15. Accepted. See HO #9.

16. Accepted. See HO #10.

17. Accepted.

18. Accepted. See HO #10.

19. Accepted. See HO #10.

20. Accepted. See HO #10.

21. Accepted. See HO #11.

22. Rejected. Irrelevant.

23. Rejected. Irrelevant.

24. Rejected. Irrelevant.

25. Rejected. Improper summary.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1 and #2.

2. Accepted. See HO #3 and #4.

3. Accepted. See HO #5, #6 and #8.

4. Accepted. See HO #9 and #10.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted that Petitioner arrived at work on January 12, 1989. The rest of paragraph 8 is rejected as improper summary.

9. Rejected. Witness incompetent to make legal conclusion.

10. Rejected. Irrelevant.

COPIES FURNISHED:

James A. Tucker, Esquire Florida Rural Legal Services 2209 Euclid Avenue

Fort Myers, Florida 33901

Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906

R. S. Power, Esquire Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire Andrew J. McMullian

General Counsel Interim Secretary Department of Health and Department of Administration Rehabilitative Services 435 Carlton Building

1323 Winewood Boulevard Tallahassee, Florida Tallahassee, Florida 32399-0700 32399-1550

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

WILLIAM GRIMSLEY,

Petitioner,

1. DOA CASE NO. AB-89-09

   DOAH CASE NO. 89-1183

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This matter is before the Department of Administration for entry of a final order.

   
   

   The Recommended Order herein was entered on August 9, 1989, by Veronica E. Donnelly, Hearing Officer. The record in this case, including the exhibits introduced into evidence at the hearing, has been reviewed. The Findings of Fact contained in the Recommended Order (Exhibit "A") are adopted by the Department of Administration, (Exhibit "A," attached hereto). The Conclusion of Law are adopted and incorporated as part of this Order. (Exhibit "A," attached hereto).

   It is therefore concluded:

   
   

   1. Rule 22A-7.010(2)(a), Florida Administrative Code, creates a rebuttable presumption that an employee who is absent from work for three consecutive workdays without authorized leave is deemed to have abandoned his position.

      This presumption can be rebutted. The Hearing Officer found that Mr. Grimsley did not intend to abandon his position when he remained in Georgia for the three additional days to assist his father in family matters and had reasonably believed that his supervisor had been informed of the reasons for his extended absence.

      
      

   2. Under the circumstances presented, petitioner did not abandon his position and should be reinstated to his position.

ORDER

It is therefore ORDERED that the action of the Department of HRS in deeming William Grimsley to have abandoned his position of employment and to have resigned from the Career Service is REVERSED AND OVERRULED. The petitioner shall be reinstated effective January 12, 1989, and shall receive all monies and benefits which he would have received if he had not been deemed to have abandoned his position, less any earnings from employment or unemployment compensation petitioner may have received from the date of his separation from the agency until his reinstatement.

This Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a Notice of Appeal in the First or Second District Court of Appeal, located in Tallahassee and Lakeland, pursuant to Section 120.68, Florida Statutes (1987). Such notice must be filed with the District Court of appeal within thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration, as indicated in the Certificate of Clerk below, or further review of this action will be barred.

DONE AND ORDERED in Tallahassee, Florida, this 30th day of October, 1989.

ANDREW MCMULLIAN, INTERIM SECRETARY

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550 904/488-4116

Certificate of Clerk:

Filed in the Official records of the Department of Administration this 30th

of October, 1989.

COPIES FURNISHED:

Veronica E. Donnelly, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

James A. Tucker, Esquire Florida Rural Legal Services 2209 Euclid Avenue

Fort Myers, Florida 33901

Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906

Larry D. Scott, Senior Attorney Department of Administration

438 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-001183

Orders for Case No: 89-001183