ARTHUR G. SAHAGIAN, JR., )
vs. ) CASE NO. 89-3537
Respondent. )
Pursuant to notice, a formal hearing was conducted in this case on September 7, 1989, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
For Petitioner: Arthur G. Sahagian, Jr., pro se
For Respondent: Eric A. de Moya, Esquire
Stephen J. Keller, Esquire Department of Revenue
The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
On June 29, 1989, Petitioner filed a petition with the Department of Administration requesting review of Respondent's determination that Petitioner had abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. By order issued June 28, 1989, the petition was accepted by the Department of Administration and referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.
At hearing, Respondent presented the testimony of two witness: William P. Frichtman, Respondent's Personnel Officer, and Allen L. Adams, the supervisor of Respondent's Fort Lauderdale office where Petitioner had worked as a Tax Auditor II prior to the termination of his employment. In addition to the testimony of these two witnesses, Respondent offered into evidence seven exhibits, all of which were admitted. Petitioner was the lone witness to testify on his behalf. He also offered into evidence one exhibit. This exhibit was received.
The parties were advised on the record before the close of the hearing that their post-hearing pleadings had to be filed within ten days of the date of the filing of the hearing transcript with the Division of Administrative Hearings.
The hearing transcript was filed with the Division on September 27, 1989. Respondent filed a proposed recommended order and supporting brief on October 9, 1989. The proposed findings of fact set forth in Respondent's proposed recommended order have been carefully considered and are addressed in the Appendix to this Recommended Order. Petitioner has not filed any post- hearing pleadings with the Hearing Officer.
Based upon the record evidence, the Hearing Officer makes the following Findings of Fact:
Respondent was formerly employed as a Tax Auditor II in Respondent's Fort Lauderdale office.
In May, 1987, Petitioner filed a charge against Respondent with the Equal Employment Opportunity Commission (EEOC). The charge was docketed as Charge No. 150871115. Eleven months later, Petitioner filed a second charge against Respondent with the EEOC. This second charge was docketed as Charge No. 150881243.
By letter dated May 3, 1988, Petitioner requested that he be granted leave without pay "until both EEOC investigations [were) over." Petitioner's request resulted in a memorandum of understanding and agreement between Petitioner and the Acting Director of Respondent's Division of Audits, Glenn Bedonie. The memorandum was signed by Bedonie on May 9, 1988, and by Petitioner the following day. It provided in pertinent part as follows:
This memorandum will confirm our agreement that the Department is granting your request for leave without pay until such time as the two Equal Employment Opportunity Commission (EEOC) investigations are completed and the findings or conclusions are rendered and final.
This action is based upon your voluntary request dated May 3, 1988 attached herein.
You will remain on approved leave without pay commencing at 8:00 a.m., Wednesday, May 11, 1988 for (12) twelve calendar months or until a finding or conclusion has been rendered and becomes final by the EEOC in both of the above EEOC investigations.
If a finding is not so rendered in both investigations within (12) calendar months, and if you make a timely request to this office the Department agrees to request an extension from the Department
of Administration of your leave of absence without pay under Rule 22A- 8.016(2), F.A.C. Such extension is to last until such time as an investigative finding or conclusion is rendered and becomes final in both investigations.
On May 10, 1988, the same day he signed the foregoing memorandum of understanding and agreement, Petitioner advised his supervisor in writing that the following were "two addresses where mail will reach me:" P.O. Box 22-2825, Hollywood, Florida 33022 and 8311 Dundee Terrace, Miami Lakes, Florida 33016. Petitioner did not indicate any other manner in which he could be contacted.
By letter dated August 31, 1988, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No. 150871115, that the evidence obtained during the investigation [did] not establish a violation of the statute." The letter also contained the following advisement:
This determination does not conclude the processing of this charge. If the charging Party wishes to have this determination reviewed, he must submit a signed letter to the Determination Review Program which clearly sets forth the reasons for requesting the review and which lists the Charge Number and Respondent's name. Charging Party must also attach a copy of this Determination to his letter. These documents must be personally delivered or mailed (postmarked) on or before 09-14-88 to the Determinations Review Program, Office of Program Operations, EEOC, 2401
E. Street, N.W., Washington, D.C. 20507. It is recommended that some proof of mailing, such as certified mail receipt, be secured.
If the Charging Party submits a request by the date shown above, the Commission will review the determination. Upon completion of the review, the Charging Party and Respondent will be issued a final determination which will contain the results of the review and what further action, if any, the Commission may take. The final determination will also give notice, as appropriate, of the Charging Party's right to sue.
Petitioner requested review of the Miami District Director's determination in Case No. 150871115. By letter dated April 28, 1989, Petitioner and Respondent were notified of the results of that review. The body of the letter read as follows:
The Commission has reviewed the investigation of this charge of employment discrimination and all supplemental information furnished. Based upon this review, we agree with the determination issued by our field office and hereby issue a final determination that the evidence obtained during the investigation does not establish a violation of the statute.
Therefore, the Commission dismisses and terminates its administrative processing of this charge.
As the charge alleged a Title VII violation, this is notice that if the Charging Party wishes to pursue this matter further, (s)he may do so by filing a private action in Federal District Court against the Respondent(s) named above within 90 days of receipt of this Determination.
IF CHARGING PARTY DECIDES TO SUE, CHARGING PARTY MUST DO SO WITHIN 90 DAYS FROM THE RECEIPT OF THIS DETERMINATION; OTHERWISE THE RIGHT TO SUE IS LOST.
By letter dated March 8, 1989, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No, 150881243, that the "evidence obtained during the investigation [did) not establish a violation of the statute," The letter further advised:
If the Charging Party does not request a review of this determination by March 22, 1989 this determination will become final the following day, the processing of this charge will be complete, and the charge will be dismissed. (This letter will be the only letter of dismissal and the only notice of the Charging Party's right to sue sent by the Commission.) FOLLOWING DISMISSAL, THE CHARGING PARTY MAY ONLY PURSUE THIS MATTER FURTHER BY FILING SUIT AGAINST RESPONDENT(S) NAMED IN THE CHARGE IN FEDERAL DISTRICT COURT WITHIN 90 DAYS OF THE EFFECTIVE DATE OF
THE DISMISSAL. Therefore, in the event a request for review is not made, if a suit is not filed by June 21, 1989 the Charging Party's right to sue will be lost.
Petitioner did not request review of the District Director's determination in Case No. 150881243. Therefore, this determination became final on March 23, 1989.
On May 5, 1989, Respondent's Personnel Officer, William P. Fritchman, sent Petitioner a letter by certified mail, return receipt requested, directing Petitioner to report to work immediately. The letter was mailed to P.O. Box 22- 2825, Hollywood, Florida 33022. The body of the letter provided as follows:
This letter is to notify you that your tax auditor II position in Fort Lauderdale, Florida is ready for you to return to work. Your return to work will be effective immediately upon your receipt of this letter.
The Department of Revenue agreed to your request for a leave of absence without pay for 12 months or until EEOC in Miami had concluded its investigation of your EEOC charges, numbers 150-88-1234 [sic] and 150-87-1115. As you know, EEOC has now concluded its investigations and issued its findings in both cases. The Department considers the reason for granting the leave of absence to be expired.
Please contact Mr. Bill Hammock, Chief of Audit Activity or Mr. Howard Maxwell, Field Audit Supervisor, immediately upon receipt of this letter concerning your intentions regarding your actual reporting to work in Fort Lauderdale.
Their phone number is (904) 488-0310.
Your immediate supervisor will be Ms. Mary Jane Myscich. Please report to her concerning any necessary details surrounding your reporting to work.
If you do not contact either of the above individuals as instructed in this letter within three workdays from the date you receive this letter, the Department will consider that you have been on unauthorized leave without pay for that three workday period. Such unauthorized leave will be considered to be abandonment of position and a resignation from the Department of Revenue as outlined under Rules 22A- 7.010(2) and 22A-8.002(5).
Please contact me at (904) 488-2635 if you have any questions concerning this matter.
Efforts to deliver the letter to Petitioner were unsuccessful. It therefore was subsequently returned to Fritchman as "unclaimed."
By letter dated May 7, 1989, but not mailed until May 10, 1989, Petitioner requested "an extension of leave without pay status for six additional months."/1 In support of his request, Petitioner erroneously stated the following in the letter:
Findings and conclusions of both EEOC Charge Nos.:150871115 dated 5/13/87 and 150881243 are as EEOC has informed you are rendered but not final. The former charge is still under appeal.
Petitioner's May 7, 1989, letter, as well as the envelope in which it had been sent, reflected that Petitioner's current mailing address was 8311 Dundee Terrace, Miami Lakes, Florida 33316. Accordingly, on May 12, 1989, utilizing a next- day delivery service, Fritchman sent to that address the following letter informing Petitioner of the denial of his leave request:
I am in receipt of your letter sent May 10, 1989 to Mr. Bedonie. In your letter you request the Department to seek an extension of your leave without pay for an additional six months.
For the reasons expressed in my letter to you dated May 5, 1989, copy attached, your approved leave of absence is concluded. Under the written agreement between you and the Department the two EEOC investigations have concluded; therefore the reason for your leave no longer exists.
A copy of my letter to you dated May 5, 1989 is attached to this letter and incorporated by reference as if fully set forth. If you have already received a copy of that letter, then your return to work is effective on that date of your receipt.
You are expected to resume your duties as a Tax Auditor II. Please contact me at (904) 488-2635 if you have any questions concerning this matter.
The next-day delivery service unsuccessfully sought to deliver this letter and attachment to Petitioner at 8311 Dundee Terrace, Miami Lakes, Florida 33316. On May 18, 1989, the letter and attachment were returned to Fritchman. Later that same day, Fritchman attempted to contact Petitioner by telephone, but was unable to reach him.
As of May 18, 1989, Petitioner had not yet returned to work, notwithstanding that he had not received authorization to be absent at any time
subsequent to the expiration of the leave he had been granted pursuant to the May, 1988, memorandum of understanding and agreement. In view of Petitioner's failure to report to work, Fritchman sent to Petitioner's Hollywood post office box a letter dated May 19, 1989, informing Petitioner that, because he had been absent without authorized leave for three consecutive workdays, he was deemed to have abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. Fritchman further explained in the letter as follows:
You did not report to work on May 11, 1989 under the terms of your agreement with the Department. You were therefore on unauthorized leave without pay effective May 11, 1989 or on receipt of the May 5, 1989 letter, whichever occurred first. You have not reported
to work as agreed in the May 11, 1988 agreement. You are not entitled to rely on a unilateral request for an extension of leave without reporting to work.
Rule 22A-8.002(5)(b), F.A.C. states:
"If an employee's request for leave is disapproved and the employee takes unauthorized leave, the agency head 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."
You did not report to work on May 11, 1989 nor any day after that. The Department considers you have been on unauthorized leave of absence for three consecutive workdays. The Department considers that effective certainly no later than 5:00 p.m., Thursday, May 18, 1989 you have abandoned your position and resigned from the Career Service.
The Department's records will indicate that this is a voluntary resignation from employment with the Department.
It is this determination that Petitioner abandoned his position and resigned from the Career Service which is the subject of the instant controversy.
CONCLUSIONS OF LAW
The Department of Administration has been given the authority by the Florida Legislature to "develop and administer the establishment of uniform personnel rules, records, and reports relating to employees and positions in the career service." Section 110.201(1), Fla. Stat.
The Department has adopted such "uniform personnel rules." They are found in Chapter 22A, Florida Administrative Code.
Among the subjects addressed by these rules is a Career Service employee's abandonment of his position. Florida Administrative Code Rule 22A- 7.010(2)(a) provides as follows concerning this matter:
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 to appeal to the Public Employees Relations Commission; however, any such employee shall have the right to petition the [D]epartment [of Administration] for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.
Florida Administrative Code Rule 22A-8.002(5), which provides as follows, also addresses the subject of abandonment:
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.
When prior approval cannot be obtained by the employee due to such emergencies, the agency head shall take one of the following actions:
Grant the employee leave with pay, provided the employee has sufficient accrued leave credits to cover the absence,
Place the employee on leave without pay for the absence, or
If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.
If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the agency head 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.
These rule provisions put "all Career Service Employees on notice that absence without authorized leave for three consecutive workdays is tantamount to a formal resignation," a consequence that has been held to be "sensible and inherently correct." Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978). The public has an interest "in replacing public employees that do not work." Florida Administrative Code Rules 22A- 7.010(2)(a) and 8.002(5) promote this interest "by facilitating elimination of those who do not report to work for a certain time." Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982)
In a proceeding to review an agency's determination that one of its employees abandoned his position by failing to report to work for three consecutive workdays without authorized leave, the employing agency bears the burden of proving by a preponderance of the evidence the correctness of its determination. See Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414-415 (Fla. 1st DCA 1974)(as a general rule, the burden of proof is "on the party asserting the affirmative of an issue before an administrative tribunal," and that party must prove its case by a preponderance of the evidence).
Respondent has met this burden of proof in the instant case. The Preponderance of the evidence establishes that, following the expiration of the authorized leave without pay that he had been granted pursuant to the May, 1988, memorandum of understanding and agreement signed by Petitioner and Acting Division Director Bedonie,/2 Petitioner was absent from work for more than three consecutive workdays without having received authorization for his absence on these days. Although Petitioner requested an extension of his authorized leave, the requested extension was justifiably denied and Petitioner therefore did not have permission to be absent from work at any time after May 10, 1989, as alleged by the Department. That Petitioner at the time of his absence may have believed to the contrary, as he claims, is immaterial, inasmuch as there has been no showing that any agent or representative of Respondent made any representation to Petitioner which could have led him to reasonably believe that he had permission to be absent on these days. See Department of Transportation
v. Clancy, 521 So.2d 276 2 (Fla. 2d DCA 1988). If anything, the record evidence reveals that, while under no obligation to do so, Respondent's supervisory personnel made every reasonable effort to warn Petitioner that he did not have such permission and that his failure to report to work for three consecutive workdays would be deemed an abandonment of his position.
Because Respondent has demonstrated that Petitioner was absent from work on at least three consecutive workdays without permission, its determination that Petitioner abandoned his Tax Auditor II position with Respondent and resigned from the Career Service should be sustained.
RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his Tax Auditor II position with Respondent and resigned from the Career Service.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1989.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1989.
1/ The letter was mailed from the same Hollywood, Florida post office where Petitioner maintained his post office box.
2/ Pursuant to the terms of the memorandum, Petitioner was to remain on approved leave without pay status "until a finding or conclusion has been rendered and becomes final by the EEOC in both of the above EEOC investigations [Charge Nos. 150871115 and 150881243], but in no event after May 10, 1989, unless an extension was timely requested and approved. The findings and conclusions rendered by the EEOC with respect to Charge Nos. 150881243 and 15087115 became final on March 23, 1989, and April 28, 1989, respectively.
Therefore, by operation of the terms of the May, 1988, memorandum of understanding and agreement, Petitioners approved leave without pay expired on this latter date. Respondent, however, in determining that Petitioner abandoned his position, relied on his attendance record after May 10, 1989, the date Petitioner's authorized leave without pay would have expired had the EEOC not taken final action with respect to Charge Nos. 150881243 and 150871115 before then.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3537
The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Respondent:
Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it adds only unnecessary detail.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and Incorporated in substance.
Rejected because it adds only unnecessary detail.
Rejected because it is more in the nature of a summarization of testimony than a finding of fact based on such testimony.
Accepted and incorporated in substance.
Accepted and incorporated in substance, except to the extent that it suggests that Petitioner actually received and read the contents of Fritchman's May 5, 1989, letter. To the extent that this proposed finding so suggests it has been rejected as not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
Rejected because it adds only unnecessary detail.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by Persuasive competent substantial evidence.
Accepted and incorporated in substance.
Rejected because it is more in the nature of a summarization of testimony than a finding of fact based on such testimony.
Rejected because it is more in the nature of commentary on evidence adduced at hearing than a finding of fact based on such evidence.
Rejected because it is more in the nature of a summarization of testimony than a finding of fact based on such testimony.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it adds only unnecessary detail.
Rejected because it is more in the nature of a summarization of testimony than a finding of fact based on such testimony.
Rejected because it is immaterial. To demonstrate that Petitioner abandoned his Position, Respondent was not required to show that Petitioner was actually aware of his obligation to report to work after the expiration of the leave he had been granted pursuant to the May, 1988, memorandum of understanding and agreement.
Accepted and incorporated in substance.
Rejected because it is immaterial.
Rejected because it is more in the nature of a conclusion of law than a finding of fact.
Arthur G. Sahagian, Jr. Post Office Box 22-2825 Hollywood, Florida 33022
Eric A. de Moya, Esquire Stephen J. Keller, Esquire Department of Revenue
Larry D. Scott, Esquire Department of Administration Office of the General Counsel
Katie D. Tucker, Executive Director Department of Revenue
William D. Moore, Esquire Department of Revenue
Mr. A. J. McMullian, III Interim Secretary
Augustus D. Aikens, Jr., Esquire Department of Administration
