STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA SCHOOL FOR THE DEAF ) AND THE BLIND, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1188

)

STEWART M. ROCKWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case on June 13, 1989, in St. Johns County, Florida. The authority for the conduct of the hearing was Section 120.57(1), Florida Statutes. Charles C. Adams served as the Hearing Officer.

APPEARANCES

For Petitioner: Barbara J. Staros, Esquire

Carl J. Zahner, Esquire State Board of Education Knott Building Tallahassee, Florida 32399

For Respondent: Stewart M. Rockwell, pro se

40 Macaris Street

St. Augustine, Florida 32084 STATEMENT OF THE ISSUES

The question presented here concerns whether Respondent has abandoned his employment position with the Petitioner as contemplated under Rule 22A-7.010(2), Florida Administrative Code.

PRELIMINARY STATEMENT

At the final hearing on June 13, 1989, Petitioner presented the testimony of Catherine L. Rhoten, Samuel R. Visconti, and the deposition testimony of L. Daniel Hutto, together with Petitioner's Exhibits A-F admitted into evidence. Respondent testified and offered Respondent's Exhibits 1-4, with the first and fourth exhibits being admitted and the second and third exhibits being denied admission as evidence.

This Recommended Order is being entered following the review of certain exhibits admitted into evidence and in consideration of the testimony given at the final hearing. Petitioner has filed a post-hearing brief and that item has also been examined. Respondent was afforded the opportunity to offer a written submission post-hearing and did not do so. In this connection, Petitioner in

the person of its counsel had not decided at the conclusion of the hearing whether this case would be transcribed for the use of the Hearing Officer in the preparation of the Recommended Order and asked that an additional day or two be given to make that decision following the conclusion of the hearing. It was contemplated that the Petitioner would apprise the Respondent of the choice of the preparation of a transcript or choice to proceed without benefit of transcript by phoning the place of residence of the Respondent and advising him of the choice. The post-hearing brief of the Petitioner was received on June 23, 1989. Under these circumstances there was some question about whether the Petitioner had advised the Respondent of the choice to proceed with a transcript or without benefit of a transcript and counsel for the Petitioner was told to carry forward the instructions of the Hearing Officer concerning advice to the Respondent on the election to proceed with or without a transcript. In essence, having received the post-hearing brief and no transcript having been filed prior to the filing date related to the post-hearing brief, it was surmised that the Petitioner did not intend to have a transcript prepared for the use of the Hearing Officer. Petitioner's counsel then called the place of residence of the Respondent on June 30, 1989, and according to correspondence of June 30, 1989, from counsel for Petitioner she spoke to Respondent's father and advised the father that the Respondent had ten (10) days from that date to file a post- hearing brief or proposed recommended order. Further, according to the correspondence of June 30, 1989, the father was told a transcript had not been ordered and the father was told a phone number at which the present counsel for the Petitioner could be reached or the counsel who appeared for the Petitioner at the final hearing could be reached. A copy of the statement of confirmation of the contact between the Petitioner's counsel and the father of the Respondent may be found as attachment "A" to this Recommended Order. A copy of that correspondence of June 30, 1989, is shown as having been sent to the Respondent. Given that the Respondent had not offered a proposed recommended order or a post-hearing brief within 17 days of the date of the correspondence of notification, and the date upon which the phone call was made to the father, the Hearing Officer set about the preparation of this Recommended Order.

FINDINGS OF FACT

1. While working at the Florida School for the Deaf and the Blind in St. Augustine, Florida, Respondent sustained an injury in trying to restrain a student who was a resident in the multi-handicapped program. This part of the school is known as Vaill Hall Middle School Boys. The injury took place sometime around January, 1988. As a result Respondent was placed on worker's compensation leave for this line-of-duty injury.

   
   

2. Dr. M. W. Kilgore, II, was responsible for evaluating the Respondent's physical condition and making a decision concerning the appropriate date for the Respondent to return to work at the school.

   
   

3. On October 14, 1988, Samuel R. Visconti, the personnel director for the school wrote Dr. Kilgore stating that the Respondent had been out of work since January 13, 1988 and asking that Dr. Kilgore determine whether Respondent would be able to perform assigned duties. In trying to assist Dr. Kilgore in making the decision a copy of the Respondent's position description was provided. A response was made from Dr. Kilgore on November 2, 1988, in which he had written on the copy of the position description, "Have reviewed enclosed job description and it is my medical opinion that Stewart Rockwell is physically capable of performing these duties." In addition a form statement was provided on Dr. Kilgore's stationary in which it notes that he had treated the Respondent from April 7, 1988 until November 2, 1988 and that the Respondent was mentally and

   physically able to return to work effective November 2, 1988. Copies of these materials may be found as Petitioner's Exhibit B admitted into evidence. The information from Dr. Kilgore was received by the Petitioner on December 1, 1988.

   
   

4. As a consequence Mr. Visconti wrote to the Respondent on December 2, 1988, stating that Dr. Kilgore had indicated that the Respondent was able to work effective November 2, 1988 and notifying the Respondent of the expectation that he should return to work on December 5, 1988 at 11:30 p.m., the beginning of his work shift. A copy of that correspondence may be found as Petitioner's Exhibit C admitted into evidence. That correspondence was dispatched by certified mail return receipt requested. In addition to sending the Letter of December 2, 1988, Mr. Visconti spoke with the Respondent on the phone and told the Respondent he was expected to return to work on December 5, 1988, in view of the comments of Dr. Kilgore to the effect that the Respondent was able to return to his job. In this same telephone conversation Mr. Visconti indicated to the Respondent that if the Respondent was of the persuasion that he needed further convalescence he was expected to get medical evidence and apply for leave from the Petitioner, which would have been without pay, and that the school would consider that request. He reminded the Respondent that returning to work on December 5, 1988 would not jeopardize the pending worker's compensation claim which the Respondent had placed against the Petitioner. This conversation took place before the December 2, 1988 correspondence was sent. Respondent didn't apply for medical leave without pay or request to continue in his worker's compensation status away from the job prior to returning to work on December 5, 1988.

   
   

5. On December 5, 1988 Respondent appeared at work for his 11:30 shift at the Vaill Hall Middle School Boys. He was unable to conclude that shift due to problems he stated he was experiencing with his back. He left one and one-half hours before the completion of the shift.

   
   

6. Mr. Visconti was made aware of the fact that the Respondent had left his duty station before the conclusion of the duty shift commencing on December 5, 1988 and continuing into the morning of December 6, 1988. That shift would have ended at 8:00 a.m. on December 6, 1988. Respondent had left at approximately 6:30 a.m. on December 6, 1988. Having been made aware of the Respondent's decision to leave before the conclusion of his duty shift Mr. Visconti instructed Catherine L. Rhoten, Residential Programs Supervisor of the Day and Night Staff, that she should monitor the situation of the Respondent's attendance at his job, that if the Respondent didn't call he would be considered as having abandoned his job after three days absence upon dates that he was expected to be at his employment with the school.

   
   

7. On December 6, 1988 a conversation was held between the Respondent, Rhoten and L. Daniel Hutto, Assistant Principal Residential Programming. This was a telephone conversation. In the course of this discussion Respondent was made aware of the fact that he had been moved from his present job assignment at Vaill Hall to an assignment in the Gregg Hall Transition Group effective upon his return to work on December 8, 1988. Gregg Hall was a dormitory for students who were having problems adjusting to residential living at the school and was constituted of children 12 years old through 18 years old. Both the Vaill assignment and the Gregg assignment were on the second floor. Respondent asked if the new assignment included more or less physical movement than in his previous situation at Vaill. The response was that it included some moving around. The Respondent retorted that he was unable to do that because of his physical condition. At that point of the conversation it was emphasized to Respondent that medical documentation had been made available to the school from

   Dr. Kilgore which indicated that the Respondent was mentally and physically able to return to work and that he was expected to return. Respondent was told that if he did not come back to work for his duty shift and that if he missed three days in a row disciplinary action would be taken against him.

   
   

8. Between the two assignments, Vaill and Gregg Hall, the students who were at Vaill Hall were more prone to be physically resistant than those at Gregg Hall, as it might impact the question of some further injury to the Respondent. Gregg Hall is a dormitory for deaf students. On the other hand the majority of students at Vaill Hall would be asleep during Respondent's duty assignment.

   
   

9. During the telephone conversation of December 6, 1988, Respondent was made aware that he needed to bring medical documentation to vouch for the problems that he had had on the duty shift for December 5-6, 1988 in which he had left an hour and a half early. He needed a medical excuse for missing the hour and a half. This was in furtherance of receiving credit for the time missed on that shift.

   
   

10. The assignment at Gregg Hall ran from 3:15 p.m. through 11:45 p.m. The first work day was to be December 8, 1988.

    
    

11. In the December 6, 1988, conversation Respondent indicated that he wished to have some other doctor than Dr. Kilgore evaluate his medical situation in that he did not think that Dr. Kilgore believed his complaints concerning his physical condition. He was told that he would have to look to Dr. Kilgore to evaluate his condition. When Respondent was told that medical documentation had been received from Dr. Kilgore which indicated that Respondent was able to work, he stated that he didn't believe he could. Respondent was told if he didn't feel that he was able to work he could resign as an alternative to his problem. His reply to this suggestion was that he would not resign because the reason he was unable to work was due to an injury he had received while working at the school.

    
    

12. The doctor which the Respondent asked to see was Dr. Hubert Bullock. Through the December 6, 1988 conversation, Respondent was left with the impression that Hutto would contact the personnel office of the school to see if an appointment could be made for the Respondent to see Dr. Bullock. Respondent intended to call back on December 7, 1988 to inquire about the appointment.

    
    

13. Before speaking to Mr. Hutto on December 7, 1988 Respondent checked with Dr. Bullock's office and was told that the school had not made an appointment for his benefit. As a consequence the Respondent attempted to make an appointment for January 4, 1989. In the course of the telephone conversation on December 7, 1988 between Respondent and Mr. Hutto, instigated by Respondent, he asked Mr. Hutto if arrangements had been made for him to see another doctor to get another opinion of his physical condition. Respondent was told again that the school had received medical documentation that he was able to work and that it was expected that Respondent should return to work at 3:15 p.m. on December 8, 1988. Respondent replied that Dr. Kilgore did not know how he felt and that he wanted to see his own physician, namely Dr. Bullock. Mr. Hutto stated in response to that remark that Respondent was expected to be at work at 3:15 p.m. on December 8, 1988. Mr. Hutto informed the Respondent to the effect that the school was not going to arrange for the Respondent to have an appointment with Dr. Bullock. Respondent told Mr. Hutto that he had made his own appointment for January 4, 1989 and would not be able to provide any other

    medical evidence of his condition until he had gone to see the doctor, meaning Dr. Bullock and that he wouldn't be back until he kept that appointment.

    
    

14. Through the conversation of December 7, 1988 with Mr. Hutto, Respondent was left with the impression that the school would wait until he saw Dr. Bullock before clearing up the question of his medical condition and returning to work. For some reason Respondent did not believe that any disciplinary action would be taken against him before he saw Dr. Bullock. Nothing in the remarks of Mr. Hutto on the occasion of December 7, 1988 in the telephone conversation described or otherwise would reasonably lead the Respondent to conclude that the Petitioner would not take some action against Respondent if he were absent from his duty assignment or lead the Respondent to believe the Petitioner would wait for the outcome of an evaluation by Dr. Bullock before taking disciplinary action against him for absence from his duty assignment.

    
    

15. Petitioner's Exhibit A admitted into evidence is a written summarization of the conversations of December 6 and 7, 1988, between Respondent and Ms. Rhoten and Mr. Hutto.

    
    

16. Respondent did not show up for his work assignment on December 8-12, 1988. As a consequence on December 15, 1988, Mr. Visconti sent a certified mail letter to Respondent which he signed for on December 19, 1988. This letter constituted notification by the Petitioner that it considered the Respondent to have abandoned his job position because of those absences. A copy of this correspondence may be found as Petitioner's Exhibit D and admitted into evidence. Although the correspondence reminds the Respondent of his right to question the action of the Petitioner in dismissing him from his employment through a petition filed with the Department of Administration and not with the Public Employees Relation Commission, Petitioner initially sought to gain relief with the Public Employees Relation Commission who dismissed the action. The Commission did allow the case to be sent to the Department of Administration for its analysis. That led to the Department of Administration's request for the Division of Administrative Hearings to assign a Hearing Officer to conduct a formal hearing. This request was responded to by the Division and a hearing conducted as commented on in the course of this Recommended Order. Under the circumstances, Respondent's request for hearing though submitted to the wrong forum initially is still perceived as a timely request.

    
    

17. After receipt of the Notice of Abandonment, Respondent at that time did not seek or gain any form of medical leave without pay or receive treatment at an emergency room. The next medical evaluation that was received was through Dr. Bullock. The January 4, 1989 appointment had to be reset to January 23, 1989 due to the illness of Dr. Bullock. Notice of this change of appointment many be found in Respondent's Exhibit No. 1 admitted into evidence, commentary by Dr. Bullock concerning the need to change the appointment from January 4, 1989 to January 23, 1989, which the Respondent made Petitioner aware of through the person of a Ms. Stephanie Battle of the Petitioner's office. This notification of the change of appointment as described in Respondent's Exhibit No. 1 from Respondent to Petitioner's employee took place on January 5, 1989, beyond the time of the Notice of Abandonment and opportunity for election to contest the proposed action by the Petitioner. As a result, when Respondent tried to provide further information, Ms. Stephanie Battle informed the Respondent not to bring any more information to the Petitioner. This refers to the Respondent's attempt to provide information described as a supplemental disability claim report, Respondent's Exhibit No. 2 denied admission as evidence. Specifically, Battle told the Respondent that he did not need to give

    anymore paperwork to the school because he had been terminated. That item, Respondent's Exhibit No. 2, bears a date of March 7, 1989.

    
    

18. Respondent did not see Dr. Bullock until February 10, 1989.

    
    

19. Respondent's Exhibit No. 4 admitted into evidence is correspondence dated December 19, 1988 in which Respondent attempts to explain to Mr. Visconti the reasons why he failed to work for the five consecutive days described in the abandonment letter. It recounts portions of the conversations of December 6, 1988 and December 7, 1988 between the Respondent and Ms. Rhoten and Mr. White. It is insufficient to promote Respondent's reinstatement.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case under Section 120.57(1), Florida Statutes.

    
    

21. It is incumbent upon the Petitioner to prove by a preponderance of evidence that the Respondent had abandoned his job in the period of December 8- 12, 1988 as alleged. The controlling statement concerning the issue of abandonment is set forth in Rule 22A-7.01(2)(a) which states:

    
    

    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 Employee 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.

       
       

22. Respondent was absent on December 8-12, 1988 without authorized leave on days that he was obligated to perform his employment and as such has abandoned his job. He was duly noticed that he had abandoned his job as required under Rule 22A-7.010(2), Florida Administrative Code, and offered a timely petition to challenge the choice to terminate him as having abandoned his job position without success.

RECOMMENDATION

Based on the foregoing, it is, hereby

RECOMMENDED That a Final Order be entered which holds that Respondent has abandoned his job with Petitioner and has thereby resigned.

DONE and ENTERED this 28th day of July, 1989, in Tallahassee, Florida.

CHARLES C. ADAMS

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 28th day of July, 1989.

COPIES FURNISHED:

Barbara J. Staros, Esquire Carl J. Zahner, Esquire State Board of Education Knott Building Tallahassee, Florida 32399

Stewart M. Rockwell, pro se

40 Macaris Street

St. Augustine, Florida 32084

Andrew J. McMullian, III, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Larry D. Scott Senior Attorney

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-001188

Orders for Case No: 89-001188