STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY M. COOPER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5519

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 25, 1990, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry M. Cooper, pro se

1601 Northwest 17th Street, Number 2

Miami, Florida 33125

For Respondent: Edward A. Dion, Esquire

Assistant General Counsel Florida Department of Labor

and Employment Security Montgomery Building, Suite 131 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

STATEMENT OF THE ISSUES

The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.

PRELIMINARY STATEMENT

On or about September 21, 1989, Petitioner filed a petition with the Department of Administration requesting review of Respondent's determination that Petitioner had abandoned his position with Respondent and resigned from the Career Service. By order issued September 29, 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.

Two witnesses testified at hearing: Petitioner and Kathy Hayes, an Adjudicator Supervisor who was Petitioner's immediate supervisor at the time of his termination. In addition to the testimony of these two witnesses, 10 exhibits were offered into evidence. All of these exhibits were received by the Hearing Officer.

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 conclusion of the hearing. On February 5, 1990, Petitioner filed a letter with the Hearing Officer in which he stated the following:

This is a letter to state the statement of fact in my case: Jerry M. Cooper. My hearing was held on Jan 25, 1990. I wish to state that I did not have 3 consecutive days of unauthorized absences. I contend that by my notifying my supervisor on 9-5-89 and again on 9-8-89 that I was not abandoning my job. I wish these facts to be considered in your final decision along with the other testimony during my hearing.

Respondent filed its proposed recommended order on February 5, 1990. The proposed findings of fact contained in Respondent's proposed recommended order, as well as those set forth in Petitioner's letter, have been carefully reviewed and are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the Hearing Officer makes the following Findings of Fact:

1. Petitioner was formerly employed as an Unemployment Compensation (UC) Adjudicator in Respondent's Miami UC office. In this capacity, he interviewed claimants seeking unemployment compensation and made initial determinations regarding the validity of their claims. Petitioner was often absent because of illness. When he was at work, however, he performed his duties competently.

   
   

2. Petitioner and his fellow employees at the Miami UC Office were required to notify supervisory personnel no later than the beginning of the workday if they were going to be absent that day. Petitioner was made aware of this requirement on various occasions prior to the absences that led to the termination of his employment with Respondent.

   
   

3. On Tuesday, September 5, 1989, Petitioner telephoned his supervisor and told her that he would be absent that day because of an ankle injury he had sustained. He did not indicate during the conversation whether he would be at work the following day.

   
   

4. On Wednesday, September 6, 1989, and Thursday, September 7, 1989, Petitioner neither reported to work nor contacted his supervisor at any time during the day to give notification of his absence.

   
   

5. On Friday, September 8, 1989, Petitioner again failed to report to work. He did, however, telephone his supervisor concerning his absence, but he did not do so until 4:50 p.m., 20 minutes after the shift to which he was assigned had ended.

6. By letter dated September 11, 1989, Respondent notified Petitioner that it had determined that Petitioner had abandoned his position and resigned from the Career Service effective the close of business September 8, 1989, in view of his unauthorized absence from work on September 6, 7, and 8, 1989. It is this determination that is the subject of the instant controversy.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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.

   
   

8. The Department has adopted such "uniform personnel rules." They are found in Chapter 22A, Florida Administrative Code.

   
   

9. 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.

   1. When prior approval cannot be obtained by the employee due to such emergencies, the agency head shall take one of the following actions:

      1. Grant the employee leave with pay, provided the employee has sufficient accrued leave credits to cover the absence,

      2. Place the employee on leave without pay for the absence, or

      3. If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.

   2. 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.

      
      

10. 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).

    
    

11. 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).

    
    

12. Respondent has met this burden of proof in the instant case. The preponderance of the evidence establishes that Petitioner was absent on three consecutive workdays, September 6, 7 and 8, 1989, and that he did not follow the necessary procedure to obtain permission to be absent on these days. Accordingly, Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service should be sustained.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1990.

STUART H. LERNER

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 16th day of February 1990.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Findings of Fact

To the extent that Petitioner asserts in his letter that he contacted his supervisor on September 5, 1989, and again on September 8, 1989, his proposed findings of fact have been accepted and incorporated in substance in this Recommended Order. To the extent that he claims that he "did not have 3 consecutive days of unauthorized absences," his proposed factual findings have been rejected because they are contrary to the preponderance of the evidence.

Respondent's Proposed Findings of Fact

1. First Sentence: Accepted and incorporated in substance; Second Sentence: Rejected because it adds only unnecessary detail.

2. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance.

3. Rejected because it adds only unnecessary detail.

4. Accepted and incorporated in substance.

5. Rejected because it adds only unnecessary detail.

6. Accepted and incorporated in substance.

7. First, second and fifth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because it adds only unnecessary detail.

8. Accepted and incorporated in substance.

COPIES FURNISHED:

Jerry Cooper

1601 Northwest 17th Street, #2

Miami, Florida 33125

Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and

Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

William A. Frieder Senior Attorney

Office of the General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Hugo Menendez, Secretary Florida, Department of Labor and

Employment Security Berkeley Building, Suite 200

2590 Executive Center Circle, East Tallahassee, Florida 32399-2152

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY M. COOPER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5519

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

SUPPLEMENTAL RECOMMENDED ORDER

On April 9, 1990, the Department of Administration remanded the instant cause to the Hearing Officer to supplement the findings of fact set forth in the Recommended Order issued in this matter on February 16, 1990. The remand order provided as follows:

A Recommended Order was rendered February 16, 1990 after a formal hearing upon the petition of Jerry M. Cooper alleging that Petitioner had not abandoned his employment. For failure to address and resolve disputed issues of material fact I remand this case to the Hearing Officer.

In the Findings of Fact submitted to me the Hearing Officer recites that Petitioner telephoned his supervisor advising that Petitioner would be absent because of an injury which he had sustained. No finding was made concerning the supervisor's response, the supervisor's understanding of Petitioner's intent to ultimately return to employment, as to Petitioner's ability to recontact his employer on September 6, 7, and 8, 1989 or his understanding of the necessity to do so. See (Doub vs. Department of Corrections - Case No. AB-89-28 (copy attached).

In the absence of findings on these issues in this case the Findings of Fact made by the Hearing Officer are not sufficient to allow me to determine whether or not an abandonment has taken place.

In view of the foregoing this cause is hereby ENDED to the Hearing Officer with directions to make additional Findings of Fact in light of the discussion in Doub and to conduct

further Fact Finding Hearings as necessary to accomplish that end.

A formal hearing on the factual issues referenced in the remand order was conducted before the Hearing Officer on May 11, 1990, in Miami, Florida. Two Witnesses testified at the hearing: Petitioner and Kathy Hayes, the same two witnesses who had earlier testified at the January 25, 1990, formal hearing in this cause. No additional exhibits were offered into evidence.

At the close of the evidentiary portion of the May 11, 1990, hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcripts of the January 25, 1990, and May 11, 1990, hearings. The Hearing Officer received these transcripts on June 7, 1990. On that same date,

Respondent filed a motion requesting that the deadline for the filing of post- hearing submittals be extended to June 22, 1990. The motion was granted by order issued June 12, 1990.

On June 19, 1990, Respondent filed a proposed recommended order.

Respondent's proposed recommended order contains proposed findings of fact. These proposed findings of fact have been carefully considered by the Hearing Officer and they are specifically addressed in the Appendix to this Supplemental Recommended Order. Petitioner has not filed any post-hearing pleading.

Based upon the record evidence, the following Findings of Fact are made to supplement the Findings of Fact set forth in the Hearing Officer's February 16, 1990, Recommended Order:

1. Petitioner's supervisor, Kathy Hayes, simply responded, "okay," upon being told by Petitioner during their September 5, 1989, telephone conversation that he would be absent from work that day.

   
   

2. Petitioner did not give any indication during the telephone conversation that he would be absent beyond September 5, 1989. Hayes therefore expected that Petitioner would return to work on the following workday, Wednesday, September 6, 1989.

   
   

3. By September 6, 1989, the ankle injury that had caused Petitioner to miss work on September 5, 1989, had healed to the extent that Petitioner was able to walk and "get around." He was suffering from a bout of depression, however, and, for that reason, did not report to work on September 6, 1989.

   
   

4. His absences on September 7 and 8, 1989, were also the result of his depressive state. 1/

   
   

5. Hayes expected Petitioner to be at work on both September 7 and 8, 1989.

   
   

6. Petitioner knew that he needed to recontact supervisory personnel at the beginning of each of these workdays - - September 6, 7 and 8, 1989 - - to give notice of his intended absence. He failed to provide such notice because he did not have a working telephone in his apartment. On the evening of September 5, 1989, Petitioner's only telephone had fallen on the floor and the receiver had broken. It remained in disrepair until approximately 4:40 p.m. on September 8, 1989.

   
   

7. Although he was unable to telephone his office from his apartment on September 6 and 7, 1989, and on September 8, 1989, until approximately 4:40 p.m., on each of these days Petitioner could have walked a few blocks from his apartment to use a pay telephone to place such a call and advise supervisory personnel of his situation and his intentions regarding reporting to work. Petitioner, however, chose not to exercise this available option on any of these days.

   
   

8. Furthermore, one of Petitioner's coworkers visited him on the evening of September 7, 1989. Petitioner could have asked the coworker to deliver a message to supervisory personnel explaining why Petitioner had not reported to work on September 6 and 7, 1989, and indicating what Petitioner's intentions were regarding his eventual return to work. Petitioner, however, made no such request of his coworker. 2/

9. In view of the foregoing, the absence of a working telephone in his apartment did not constitute a reasonable basis for his failure to timely recontact supervisory personnel on September 6, 7 and 8, 1989. 3/

   
   

10. During their late afternoon telephone conversation on September 8, 1989, Petitioner advised Hayes that he would be at work the following workday, Monday, September 11, 1989.

    
    

11. Petitioner was still feeling depressed on September 11, 1989. Accordingly, he did not report to work that day.

    
    

12. Although he was aware of his responsibility to contact his office to notify supervisory personnel of his absence on September 11, 1989, and he was able to fulfill this obligation, Petitioner failed to provide such notification.

    
    

13. Petitioner had not worked at all in September, 1989, and he had been absent virtually all of the preceding month. 4/ When Petitioner again failed to report to work on September 14, 1989, Hayes believed that Petitioner had no intention of ever returning to work.

    
    

14. While Petitioner may not have intended to relinquish his position, his failure to provide timely notice of his absences on September 6, 7, 8 and 11, 1989, 5/ gave his supervisors reason to believe that such was his intention. 6/

    
    

15. Petitioner should have reasonably expected, in view of his inexcusable failure to furnish such timely notice, that his supervisors would deem his absences on these consecutive workdays to constitute an abandonment of his position.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June, 1990.

STUART M. LERNER

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 June, 1990.

ENDNOTES

1/ Petitioner, a veteran of the Vietnam era, has been diagnosed as having post- traumatic stress syndrome. Depression is one of the symptoms of his condition.

2/ Because Petitioner was in a position where he was able to timely recontact his supervisor on September 6, 7 and 8, 1989, the pertinent facts of the instant case are distinguishable from those present in Doub and similar to those found in Florida State University v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983), a case

in which the employing agency's finding of abandonment was upheld by the appellate court.

3/ If an employee deemed by his employer to have abandoned his position because of an unauthorized absence of three or more consecutive days seeks review of his separation from service and proves "that he had a reasonable basis for his failure to seek authorization for the absence," the Department of Administration must reject the employing agency's finding of abandonment and order the employee's reinstatement. Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62, 67 (Fla. 2d DCA 1990).

4/ On a number of these occasions he had failed to notify supervisory personnel that he would be absent.

5/ His failure to provide such notice rendered these absences unauthorized.

6/ It was stated in Doud that "[i]mplicit within the concept of abandonment . .

. is the idea that the employee voluntarily leaves his employment or that he is so careless in failing to notify his employer of his situation that the employer has no choice but to believe that the employee intended to abandon his position." Petitioner displayed such carelessness in the instant case.

APPENDIX TO SUPPLEMENTAL RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the proposed findings of fact set forth in the proposed recommended order filed by Respondent in this case on June 19, 1990:

1-3. Accepted and incorporated in substance, although not necessarily recited verbatim, in the Hearing Officer's Recommended Order, as supplemented.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

6-7. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that Petitioner neither reported to work nor telephoned his supervisor on September 11, 1989, it has been accepted and incorporated in substance. To the extent that it states that Petitioner neither reported to work nor telephoned his supervisor on September

   12 and 13, 1989, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

3. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

4. Accepted and incorporated in substance.

5. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Jerry Cooper

1601 Northwest 17th Street, #2

Miami, Florida 33125

Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and

Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

William A. Frieder, Esquire Senior Attorney

Office of the General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Hugo Menendez, Secretary Florida Department of Labor and

Employment Security

Suite 200, Berkeley Building

2950 Executive Center Circle, East Tallahassee, Florida 32399-2152

Docket for Case No: 89-005519

Orders for Case No: 89-005519