STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL BYNOE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4175

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on October 10, 1989, in Fort Myers, Florida. The hearing was continued, and further testimony was heard on October 27, 1989 and November 9, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joan Stewart, Esquire

Florida Police Benevolent Association, Inc.

Post Office Box 11239 Tallahassee, Florida 32302

For Respondent: Perri M. King, Esquire

Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUE

Whether the Petitioner abandoned his position as a state employee within the Career Service System.

PRELIMINARY STATEMENT

By letter dated June 20, 1989, the Respondent, Department of Corrections (the Department) notified the Petitioner, Michael Bynoe (Bynoe), that he was separated from employment as a Correctional Officer I at Hendry Correctional Institution because he was absent without authorized leave for three consecutive days. Thereafter, the Petitioner was deemed to have abandoned his position and to have resigned from the Career Service System. The Petitioner requested a formal hearing to challenge the determination that he had abandoned his position.

During the hearing, the Respondent called eight witnesses and submitted six exhibits into evidence. The Petitioner presented one witness and testified in

his own behalf. Four exhibits were identified by the Petitioner. All of the exhibits were accepted into evidence without objection.

A transcript of the hearing was filed on November 28, 1989. Proposed Recommended Orders were filed by both parties by December 8, 1989. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material to the issue of abandonment in these proceedings, Petitioner Bynoe was a Career Service Employee, and was employed by the Department of Corrections at Hendry Correctional Institution in Immokalee, Florida, as a Correctional Officer I.

   
   

2. In February 1989, the Petitioner submitted a written request for annual leave from June 9, 1989 to June 17, 1989. The leave was approved by the Petitioner's supervisor, Captain Jody Davis.

   
   

3. June 6, 1989, Petitioner Bynoe was informed by Captain Davis that he did not have enough hours of annual leave accrued to cover the vacation period which was to begin on June 9, 1989. The prior written approval to the Petitioner for annual leave was revoked as the previously anticipated hours of accrued annual leave did not exist. The Petitioner had only eight hours of annual leave accrued at the time the approval of annual leave was revoked by Captain Davis.

   
   

4. In an attempt to accommodate the Petitioner, who had already scheduled vacation plans, Captain Davis told him that the work schedule could be rearranged to allow Petitioner Bynoe to have five days off in a row from June 7, 1989 through June 11, 1989. This work schedule would give Petitioner Bynoe his regular days off of June 7th and 8th. His regularly scheduled days off of June 14th and 15th could be moved to June 9th and 10th, and the eight hours of annual leave available to Petitioner could be used on June 11th. Thus, Petitioner could have time off from work, and Captain Davis could act within his supervisory authority with regard to his approval of leave requests from the Petitioner, who was under his direct supervision.

   
   

5. During the discussion between the Petitioner and Captain Davis, the Petitioner requested that he be allowed to take the full vacation period previously scheduled, and that the time from June 12, 1989 through June 17, 1989, be granted as leave without pay. Captain Davis informed Petitioner Bynoe that he did not have the authority to approve such a request, and that such an approval would have to come from someone higher in command.

   
   

6. Although the two men ended their conversation with the clear intention to discuss the matter later during the work period on June 6, 1989, they were unable to discuss the matter again on that date.

   
   

7. After the Petitioner completed work on June 6, 1989, he left for South Carolina as he had originally planned.

   
   

8. On June 9, 1989, Petitioner telephoned Colonel Page at Hendry Correctional Institute. As Colonel Page was on leave, the call was transferred to the personnel manager, Mr. Dick Vollmer. During the conversation, the decision made by Captain Davis to revoke the Petitioner's leave from June 12, 1989 to June 17, 1989, was discussed. Captain Davis' decision was not modified by Mr. Vollmer or anyone else at the correctional institution.

9. The Petitioner did not return to work on June 12, 1989. No additional contact with the institution was initiated by Petitioner until June 19, 1989, when he informed Captain Davis that he was to begin jury duty on that date.

   
   

10. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989.

    
    

11. Captain Davis expected the Petitioner back to work on June 12, 1989. Petitioner Bynoe was scheduled to work from June 12, 1989 to June 20, 1989. The Petitioner did not report to work nor did he contact anyone at the institution until June 19, 1989, when he began jury duty on that date.

    
    

12. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes, and Rule 22A-7.010(2), Florida Administrative Code.

    
    

14. The evidence presented demonstrates that the Petitioner's previously approved annual leave from June 9, 1989 to June 17, 1989, had been modified by his direct supervisor prior to his departure from work on June 6, 1989. The modification, which allowed the Petitioner to have five consecutive days off, was made because the Petitioner did not have sufficient annual leave accrued prior to his scheduled vacation.

    
    

15. The conduct of the Petitioner after his leave had been modified clearly indicates that he intended to take his vacation whether it was approved or not by his supervisor, or someone higher in command at the institution.

    
    

16. During the hearing, the Petitioner attempted to cloak the ultimate issue in this case with allegations of misconduct by his supervisor in a variety of situations. It was intimated that racial prejudice was involved in the decision to deem Petitioner's absence as job abandonment. The timing of the dismissal in relation to Petitioner's receipt of a summons to appear for jury duty was also suggested as an improper employment practice. These attempts to shift the Petitioner's responsibility for his own actions away from himself were not successful and were rejected by the Hearing Officer.

    
    

17. The Petitioner's failure to return to work on June 12, 1989 through June 18, 1989, under the circumstances presented, constitute abandonment of position. Petitioner Bynoe caused his own resignation from the Career Service System by his own nonfeasance when he failed to either return to work on June 12, 1989 through June 14, 1989, or to inform his employer of the reason for his absences. Petitioner's contention that his supervisor's oral modification of a written leave approval did not countermand the original grant of vacation leave is without merit.

RECOMMENDATION

Based upon the evidence, it is RECOMMENDED:

That the Secretary of the Department of Administration issue a Final Order finding that Petitioner Bynoe abandoned his position and resigned from the Career Service System.

DONE and ENTERED this 9th day of February, 1990, 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 February, 1990.

APPENDIX TO RECOMMENDED

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

1. Accepted. See HO #1.

2. Rejected. Irrelevant.

3. Rejected. Irrelevant.

4. Rejected. Irrelevant.

5. Accepted. See HO #2.

6. Rejected. Contrary to fact.

7. Accept that Captain Davis spoke with Petitioner. See HO #3 - HO #6.

8. Reject the finding that Captain Davis had not informed the Petitioner that his previously approved leave request had been rescinded. Contrary to fact. See HO #3.

9. Accepted. See HO #6.

10. Accepted. See HO #7 and HO #8.

11. Rejected. Contrary to fact. See HO #8.

12. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer.

13. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer.

14. Rejected. This testimony not believed by the Hearing Officer.

15. Accepted.

16. Accepted.

17. Rejected. Irrelevant.

18. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer.

19.-27. Rejected. Immaterial to these proceedings. Also, Daugherty's testimony was not believed by the Hearing Officer, and was rejected in full.

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

1. Accepted. See HO #1.

2. Accepted. See HO #2.

3. Accepted. See HO #3.

4. Accepted.

5. Accepted.

6. Accepted. See HO #4.

7. Accepted. See HO #5.

8. Accepted. See HO #6.

9. Accepted. See HO #3.

10. Rejected. Irrelevant.

11. Rejected. Irrelevant.

12. Accepted.

13. Rejected. Contrary to fact. See HO #8.

14. Rejected. Irrelevant.

15. Accepted.

16. Accepted. See HO #9.

17. Accepted. See HO #9.

18. Accepted. See preliminary statement.

COPIES FURNISHED:

Joan Stewart, Esquire Florida Police Benevolent

Association, Inc.

Post Office Box 11239 Tallahassee, Florida 32302

Perri M. King, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Aletta Shutes, 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

Docket for Case No: 89-004175

Orders for Case No: 89-004175