STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEWIS C. STEWART, )

)

Petitioner, )

vs. ) CASE NO. 89-1189

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above styled case on April 18, 1989, in Pahokee, Florida.

APPEARANCES

For Petitioner: Mr. Lewis C. Stewart, pro se

692 Waddel Way

Pahokee, Florida 33476

For Respondent: Lynne Winston, Esquire

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-1550 STATEMENT OF THE ISSUES

Whether the Petitioner abandoned his position with the Respondent and resigned from the Career Service System within the meaning of Rule 22A- 7.010(2)(a), Florida Administrative Code.

PRELIMINARY STATEMENT

By certified letter, the Department of Corrections, notified Petitioner, Lewis C. Stewart, that he had been deemed to have abandoned his position with the Respondent and had resigned from the Career Service System effective January 29, 1989. By letter dated February 8, 1989, Mr. Stewart petitioned for review of the facts and a ruling as to whether the circumstances in this case constitute abandonment of position. The Department of Administration elected to request assignment of a Hearing Officer from the Division of Administrative Hearings to conduct further proceedings in this case.

At the formal hearing, Petitioner testified on his own behalf and offered two exhibits, Petitioner's exhibits 1 and 2. Petitioner's exhibit 1 consisted of one page on which are copied two separate documents. One of the copied documents was admitted into evidence, but the second copied document was rejected on a sustained objection as to its authenticity. Petitioner's exhibit

2 was admitted into evidence. The Respondent presented the testimony of Edward Minor, Correctional Officer Supervisor and Chester Lambdin, Superintendent and

offered seven exhibits, Respondent's exhibits 1-7. Respondent's exhibits 1-7 were admitted into evidence.

A transcript of the proceeding was not ordered and Proposed Recommended Orders were due on April 28, 1989. The Respondent timely submitted Proposed Findings of Fact and Conclusions of Law. The Petitioner did not so file. A ruling on each Proposed Finding of Fact has been made and is reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years.

   
   

2. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent.

   
   

3. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute.

   
   

4. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989.

   
   

5. Petitioner left work due to his illness before the end of his January 26, 1989 shift.

   
   

6. Petitioner did not report to work after he left on January 26, 1989.

   
   

7. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence.

   
   

8. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989.

   
   

9. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989.

   
   

10. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor.

    
    

11. Before February 2, 1989, Mr. Minor did not see the excuse.

    
    

12. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989.

    
    

13. Petitioner was not scheduled to work on January 30 or January 31, 1989.

    
    

14. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report.

15. Notice before an absence is the standard policy of the Respondent.

    
    

16. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989.

    
    

17. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and over the subject matter of the dispute, Section 120.57(1), Florida Statutes.

    
    

19. Rule 22A-7.010(2)(a), Florida Administrative Code provides the following:

    
    

    (2) Abandonment of Position.

    (a) 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.)

    
    

20. No dispute exists that Petitioner was absent from work for three (3) consecutive days.

    
    

21. Petitioner asserts that his absences were authorized by his conversation with Mr. Minton, by the corroborating doctor's excuse and by what he found to be the policy in fact of the Respondent. Respondent's position is that the Petitioner's absences were unauthorized, because he did not follow the procedure in Rule 33-4.002(21), Florida Administrative Code which reads as follows:

    
    

    (21) Employees shall not be tardy, absent, or depart from work early without the permission of their supervisors and shall observe time limitations on rest and meal periods. Each employee shall notify his immediate supervisor or designated representative prior to his scheduled work shift in the event he expects to be absent from duty due to illness or other reason. (Emphasis added)

22. Petitioner gave notice to his immediate supervisor at the beginning of his illness and told him that he had a doctor's excuse concerning his illness. Mr. Minton did not receive the excuse until after the Petitioner's termination. Yet, no assertion was presented by the Petitioner or by the Respondent that the doctor's excuse affected the authorization of the Petitioner's absences. Since no basis in fact or law was presented to make the doctor's excuse material to the finding of authorized absence, the doctor's excuse is not relevant to Petitioner's termination.

    
    

23. Although he was aware that the policy of the Department of Corrections required notice prior to each work day in the event of illness, the Petitioner argued that his notice was sufficient since the Respondent did not enforce, on a consistent basis, the policy as found in Rule 33-4.002(21).

    
    

24. In essence, the Petitioner argued that the Respondent was equitably estopped from enforcing its rule due to its prior practice of nonenforcement. Except for his own testimony to that effect, the Petitioner did not offer examples or present evidence to substantiate a deviation from Rule 33-4.002(21). Respondent, through Mr. Lambdin, testified, however, that Rule 33-4.002(21) was enforced. No contradictory evidence was presented.

    
    

25. The issue of equitable estoppel in a similar incidence was addressed in Department of Transportation v. Clancy, 521 So.2d 376 (Fla. 2d D.C.A. 1988). There, an employee of the Department of Transportation testified that he had verbally requested leave. He had not reduced his request to the required writing because he was under the impression that his supervisor had consented; and, in the past, his employer had completed the necessary paperwork. The Court, citing Florida State University v. Brown, 436 So.2d 287 (Fla. 1st D.C.A. (1983), found that although the employer's conduct in the past may have led the employee to believe that the employer would continue to do so, no representation by the employer was made that the employee could take leave without signing the required forms.

    
    

26. Here, Petitioner acknowledged that he was on unauthorized leave on January 29, 1989 and on February 1, 1989 and on February 2, 1989. However, the Petitioner thought that Mr. Minton had approved his leave. Further, Petitioner's prior impression of conduct by the Respondent led the Petitioner to believe that the further notification would not be required on his part although he understood the policy was to the contrary.

    
    

27. A successful showing of equitable estoppel requires a representation as to a material fact that is contrary to a later asserted position, reliance on that representation, and a change in position detrimental to the party claiming the estoppel. 436 So.2d at 288. The Petitioner failed to show the first element, representation on the part of the Respondent as to the material fact of a notice practice different from that stated in Rule 33-4.002(21). Thus, Petitioner's argument fails and the Respondent was not estopped.

    
    

28. Further, the Petitioner did not give the notice required by Rule 33- 4.002(21). Since the Petitioner was not scheduled to work on January 30, 1989 and January 31, 1989, his absences on January 29, 1989, February 1, 1989 and February 2, 1989 were consecutive and fall within the meaning of Rule 22A- 7.010(2)(a)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that

the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989.

JANE C. HAYMAN

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 15th day of May 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189

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 in this case. The Respondent was the sole party who submitted Proposed Findings of Fact.

Specific Rulings on Proposed Findings of Fact

1. Adopted in Finding of Fact 1.

2. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence.

3. Rejected as conclusion of law.

4. Rejected as irrelevant.

5. Adopted in Finding of Fact 3.

6. Adopted in Findings of Fact 6 and 7.

7. Adopted in Findings of Fact 5 and 11.

8. Adopted in Findings of Fact 5 and 11.

9. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12.

10. Adopted in Finding of Fact 16.

11. Adopted in Finding of Fact 14.

COPIES FURNISHED:

Larry D. Scott, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-1550

Mr. Lewis C. Stewart 692 Waddel Way

Pahokee, Florida 33476

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Docket for Case No: 89-001189

Orders for Case No: 89-001189