STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4179

)

TIMATHY L. HOWARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Defuniak Springs, Florida before Robert

1. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 16, 1990. The Division of Administrative Hearings received the hearing transcript on February 21, 1990.

   
   

   The parties were allowed until March 30, 1989, in which to file (supplemental) proposed findings of fact. The attached appendix addresses proposed findings of fact by number.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles G. Gardner, Esquire

   605 Suwannee Street, M.S. 58

   Tallahassee, FL 32399-0458 For Respondent: Timathy L. Howard, pro se

   STATEMENT OF THE ISSUES

   
   

   Whether a state employee's failure to document to the satisfaction of his supervisors leave, taken on grounds of injury or illness to the satisfaction of his supervisors, amounts to abandonment of his position, within the meaning of Rule 22A- 7.010, Florida Administrative Code?

   
   

   PRELIMINARY STATEMENT

   
   

   When apprised of his superiors' contention that he had abandoned his position in the career service, respondent Timathy L. Howard asked for a formal administrative hearing, and the Department of Administration referred the matter to the Division of Administrative Hearings for hearing, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).

   
   

   FINDINGS OF FACT

   
   

   1. On the morning of June 20, 1989, the Department of Transportation (DOT) maintenance crew with whom respondent Timathy L. Howard worked was cutting tree limbs in the right of way alongside U.S. Highway 331 in Walton County. At about eight o'clock, a falling limb knocked respondent unconscious.

   2. When he came to, Mr. Howard complained of head and neck pain. He asked Paul R. Leddon, a DOT "highway maintenance supervisor one" who had charge of the crew, to take him to a doctor. Eventually Mr. Leddon drove him to DOT's DeFuniak Springs maintenance yard, obtained written authorization for a visit to Dr. Solomon D. Reodica, and drove respondent to the doctor's office. After examining respondent, Dr. Reodica sent him to Walton Regional Hospital for x- rays.

      
      

   3. Whether, when respondent returned to Dr. Reodica's, he had the x-ray films in his hand was a matter of some dispute at the hearing. In any case (perhaps after a telephone conversation with a radiologist or an x-ray technician at Walton Regional), Dr. Reodica wrote on a prescription-like form the following: "Mr. Howard will need to be off the rest of today and may return back to work tomorrow." Petitioner's Exhibit No. 5.

      
      

   4. Messrs. Leddon and Howard returned to the DOT maintenance yard. There both signed a form authorizing Mr. Howard to take six hours' leave. David M. Johnson, an assistant maintenance engineer in DOT's employ, told Mr. Howard that he would expect him on the job at half past six the following morning, and specifically told him that, if he failed to report, he would have to obtain medical documentation of his inability to report, if leave was to be authorized.

      
      

   5. Perhaps as anticipated on all sides, respondent Howard did not report to work the morning of June 21, 1989. But, at his request, his wife telephoned and told Mallory Paul, another DOT employee, that he did not feel well enough to come to work. Respondent's "head was still aching . . . " T.99. Mr. Paul told Mrs. Howard that the question of her husband's attendance had been discussed the day before, and that Mr. Johnson had told him to report for work.

      
      

   6. The following day Mr. Howard stayed home again, because head and neck pains persisted. Nor did he report for work on June 26, 1989, the next day he was scheduled to work, or on June 27, 1989. On June 28, 1989, DOT's H. D. Prescott wrote respondent, as follows:

      
      

      This is to advise you that you are hereby removed from your position as Highway Maintenance Technician I, DeFuniak Springs Maintenance Unit and the Department of Transportation payroll effective at the close of business, Tuesday, June 27, 1989.

      You went to the doctor on June 20, 1989 on Workers' Compensation. The doctor excused you from work for the remainder of that day and released you to come back to work on June 21, 1989. You did not report to work on Wednesday, June 21St. On the morning of the 21st, a lady, not identifying herself, called Mr. M. R. Paul,

      Highway Maintenance Supervisor II, and stated that she was calling for you and that you would not be in that day. Mr. Paul told the caller that you were aware that you would not be granted leave without a doctor's excuse, but that he was also making her aware that this absence would be unauthorized and without pay. No doctor's excuse was presented. You were placed on unauthorized leave without pay.

      Petitioner's Exhibit No. 1. Respondent learned of the existence of this letter the day it was signed, when he telephoned Mr. Johnson, who informed him that it had been sent by certified mail and would be waiting for him at the post office.

      
      

   7. Also on June 28, 1989, DOT received a bill for the x-rays that Dr. Reodica had ordered for Mr. Howard on the 20th. In a box on the form under the heading "PRINCIPAL AND OTHER DIAGNOSIS DESCRIPTIONS" the form stated "FRACTURE SKULL." Petitioner's Exhibit No. 7. But information DOT presented after the hearing suggested that respondent did not suffer a skull fracture when the tree limb hit him.

      
      

   8. Petitioner proved that respondent was reprimanded for tardiness, loafing and inattention to duty, on April 18, 1988. Petitioner's Exhibit No. 6. In the course of the hearing, it became clear that there was friction between respondent and his supervisors, which may help explain why they were unwilling to authorize respondent to take more than six hours' convalescent leave, although they had authorized respondent to take leave without pay for less dramatic maladies on other occasions, when apprised of his indisposition. T.99- 100.

      
      

   9. Respondent testified that he did not go to see another doctor because he could not afford to pay for a second opinion. T. 98. Of course, losing his job did not help financially. Because DOT reported that he had ended his employment voluntarily, he was denied unemployment compensation benefits, even though he sought other employment unsuccessfully. Eventually various home appliances were repossessed and he lost both his car and his house; his wife and children moved in with her parents. Precisely what his supervisors knew of his financial circumstances is not clear, but they were aware he had no telephone.

      
      

      CONCLUSIONS OF LAW

      
      

   10. Since the Secretary referred respondent's hearing request to the Division of Administrative Hearings, the "division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

       
       

   11. In proceedings like these, the employing agency has the burden of proof: It must establish, by a preponderance of the evidence, that the employee voluntarily surrendered his or her position in the career service. Here petitioner relies on the presumption to which three days' absence without leave gives rise:

       
       

       An employee who is absent without

       authorized leave of absence for 3 consecutive work days shall be deemed to have abandoned the position and to have resigned the Career Service.

       
       

       Rule 22A-7.010(2)(a), Florida Administrative Code. The rule is intended to strike a "fair balance" between "swift replacement of ineffective public employees," Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982) and "job security and retention." Id. But "the regulation can not and does not create a conclusive presumption." Tomlinson v. Department of Health and Rehabilitative Services, NO. 89-01166, 15 FLW D 324, D 325-6 (Fla. 2nd DCA; Jan. 31, 1990); Straughn v. K & K Land Management, Inc., 326 So.2d 421 (Fla. 1976); Clara M. Penney v. Department of Insurance, NO. 85-1530 (DOAH; Jan. 31, 1986).

   12. In the present case as in Tomlinson, the evidence as a whole revealed no intention on the employee's part to give up his job; and fully rebutted any presumption that Mr. Howard had "resigned the Career Service,' Rule 22A- 7.010(2)(a), Florida Administrative Code, by staying home to recuperate from an injury he sustained on the job. Here, as in Tomlinson, supervisors were apprised on the initial, but not separately on two, subsequent days when respondent was absent for the same reason. Here, as in Tomlinson, agency personnel seized on respondent's absence as grounds for terminating his employment, fully cognizant that he had no intention to abandon his livelihood.

       
       

   13. Mr. Howard did not "simply fail to show up for work." Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978). He sent word that he was still recovering from his injuries. This case resembles more closely Michael J. Rodgers v. Department of Transportation, No. 87-3104 (DOA; Aug. 9, 1988), where the Secretary said:

       
       

       Under the presumption created by the abandonment rule, an employee who has been deemed to have abandoned his position is entitled to a "review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position." Rule 22A-7.010(2)(a), Florida Administrative Code.

       The reasonable scheme established by the abandonment rule is done considerable violence in circumstances where an employer knows that the absence is not caused by an intent to resign, but uses the rule as a basis for taking "action . . . against an employee to separate him from the Career Service." See Section 110.203(22), Florida Statutes. (Emphasis supplied.)

       
       

       At page 6. The point is not whether, as DOT contended, respondent had been less than an exemplary employee, or had in fact escaped a skull fracture when felled by the tree limb. If respondent's work was unsatisfactory, or if he took time off without duly authorized leave, disciplinary action under career service rules might well be appropriate.

       
       

   14. But if an employing agency resorts to the abandonment rule, in order to avoid having to prove grounds for disciplinary action, when it knows the employee has not in fact abandoned his position, "[t]he reasonable scheme established by the abandonment rule is done considerable violence." Michael J. Rodgers v. Department of Transportation, No. 87-3104 (DOA; Aug. 9, 1988), at page 6. As everybody involved has been well aware all along, and as the evidence clearly established, Mr. Howard did not intend to abandon his only means of support and that of his family, when he stayed home nursing wounds he received working for DOT.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That DOT reinstate respondent and award him back pay from June 28, 1989, until the date of reinstatement.

DONE and ENTERED this 9th day of April, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 April, 1990.

APPENDIX

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 6, 7, 8, 10 through 16, 21 and 24 have been adopted, in substance insofar as material.

With respect to petitioner's proposed findings of fact Nos. 5 and 22, the evidence as to the existence vel non of a skull fracture and any treatment therefore was all hearsay, and immaterial, as well.

With respect to petitioner's proposed finding of fact NO. 9, respondent's medical condition is material to whether leave should have been granted but not to whether respondent abandoned his position.

With respect to petitioner's proposed finding of fact NO. 17, his wife made such a request, even if implicitly, on his behalf.

With respect to petitioner's proposed finding of fact NO. 18, respondent testified he couldn't afford a second opinion, and did testify that he did not trust Dr. Reodica's objectivity.

With respect to petitioner's proposed finding of fact NO. 19, respondent testified he was in pain and did not report to work for that reason.

Petitioner's proposed findings of fact Nos. 20 and 23 are immaterial.

Respondent's proposed findings of fact Nos. 4 and 16 have been adopted, in substance, insofar as material.

Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10,

11, 12, 13, 14, and 15 are immaterial.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, FL 32399-0458

Timathy L. Howard Route 4, Box 3l4-M

DeFuniak Springs, FL 32433

Larry D. Scott, Esquire Department of Administration Carlton Building Tallahassee, FL 32399-1550

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Docket for Case No: 89-004179

Orders for Case No: 89-004179