STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2051

)

ROMEY O. RICHARDSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on July 19, 1990 in Jacksonville, Florida, a formal hearing was held in this case. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Vernon Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building MS 58 605 Suwannee Street

Tallahassee, FL 32399-0458

Respondent: pro se

STATEMENT OF THE ISSUES

The issues presented in this case concern the question of whether Respondent has abandoned his position as a Highway Maintenance Technician I employed by Petitioner.

PRELIMINARY STATEMENT

This recommended order is being entered following the review of testimony presented at hearing and exhibits 1 through 6 offered by Petitioner and admitted.

A transcript of the hearing was filed on July 30, 1990. Petitioner has submitted a proposed recommended order which has been considered. The proposed facts in that submission are commented on in the appendix to the recommended order.

FINDINGS OF FACT

1. Prior to January 23, 1990 Respondent had been employed by Petitioner as a Highway Maintenance Technician I. He was a permanent employee. He did not report to work on that date or upon subsequent dates for which he was obligated to report, those dates being January 24 through 26, 1990 and January 29, 1990. The reason he did not report was based upon his incarceration for indecent exposure.

   
   

2. Jessie Calvin Rhoden, Highway Maintenance Supervisor II and the immediate supervisor to Respondent, testified that the members of his crew, to include Respondent, were responsible for calling no later than one hour before their time to report for work if they intended to be absent. This is in keeping with the policy of the Petitioner as announced in an excerpt page from that policy found as Petitioner's exhibit 4. The employee handbook containing the policy statement was received by Respondent prior to the days upon which he was absent. In particular he had received the employee handbook on April 20, 1983 as evidenced by his signature on a copy of the acknowledgment of receipt of the employee handbook which is Petitioner's exhibit 5 admitted into evidence.

   
   

3. Rhoden did not approve leave prior to January 23, 1990 that pertained to the days upon which the Respondent was absent, nor did he approve of that leave at any time during the absence or after the absence. No other official with Petitioner gave approval for Respondent to be absent.

   
   

4. Respondent's sister contacted Rhoden at 7:45 a.m. on January 23, 1990 and asked if the Respondent had reported to work. Rhoden told the sister that if the Respondent contacted her that the Respondent should call personally to request leave time.

   
   

5. On the evening of January 24, 1990 the Respondent's father, Shirley Odell Richardson spoke with Rhoden and told Rhoden that whatever the problems were that the Respondent was experiencing, that Respondent would be back to work on Thursday, January 25, 1990.

   
   

6. Previous to this occasion when the Respondent wished to have leave he would ask for that leave a week or two in advance of the time that he expected to be absent from his job, unless some emergency arose and in those instances Respondent would call and request leave at the time of the emergency.

   
   

7. Alex Hamilton Slaughter is a Highway Maintenance Supervisor III, who is in line of authority the supervisor of Rhoden. Ordinarily it is his responsibility to approve leave for Respondent. He also had a conversation with Respondent's father, as he recalls on January 23, 1990 at which time the father stated that the Respondent had gotten into some form of trouble. The father said that the problem would probably clear up quickly and Respondent would be back at his job on January 25, 1990. In this conversation Respondent's father made known the fact that the Respondent was in jail. A further conversation was held between Slaughter and the father on Thursday or Friday afternoon of the first week of Respondent's absence at which time the father said that the problem had not cleared up, but he expected the son to return to work momentarily.

   
   

8. Larry Collins is the Assistant Maintenance Engineer who is the supervisor of Slaughter. He oversees all operations of Petitioner's Ellis Road Facility in Jacksonville, Florida where Respondent was assigned. He identified that at the time the Respondent was absent it was not the policy of the

   Petitioner to approve leave for individuals who had been incarcerated. He gave two specific examples of that policy that had transpired prior to the circumstance of the Respondent. They are outlined in Petitioner's exhibits 1 and 2 related to Gary D. Smith and Gregory E. McCray respectively. Those individuals were incarcerated and were relieved of their employment based upon the fact that they missed work due to incarceration and were considered to have abandoned their jobs. This policy of the agency is an acceptable arrangement in the circumstances pertaining to Respondent. That is to say, Petitioner is not obligated to approve leave for persons who have been incarcerated. This is particularly true in the instance where Respondent has accepted the reason for his incarceration as being legitimate. Petitioner through Mr. Collins identified that the agency considers that incarceration is not grounds for mitigation of the circumstance and an excuse for the absence. He draws the contrast between that situation and one in which a person has been hospitalized wherein the employee would probably have leave approved.

   
   

9. Petitioner's exhibit 3 is a copy of the time sheet of the Respondent during the relevant time period showing his absence without authorized leave.

   
   

10. In his remarks at hearing Respondent identified the fact that he had been arrested on January 23, 1990. He stated that the authorities would not allow him to contact his parents and tell them that he was being arrested. Eventually he was allowed to make contact with his family which led to his father's conversations with Respondent's supervisors to explain the absence.

    The father had talked to the supervisors about allowing Respondent to take leave during the incarceration, but that request was not favored.

    
    

11. In his testimony the father identified the fact that he had contacted the employer to make known and have them understand the reason for his son's absence. As the father established, his son was in jail for one and a half weeks because he could not make bail. He then served three weeks house arrest at which time he could have returned to his job; however, this was beyond the time that would have been acceptable for the Respondent to take up his duties again as viewed by the Petitioner.

    
    

12. On January 30, 1990 a letter was sent to the Respondent identifying the fact that the Petitioner deemed him to have abandoned his job position. A copy of that letter may be found as Petitioner's exhibit 6. It refers to Rule 22A-7.010(2)(a), Florida Administrative Code, as grounds for the action. It identifies the fact that the Respondent had missed five days and forty hours of work through unauthorized leave. Respondent sought a hearing from the Secretary, State of Florida, Department of Administration and the case was referred to the Division of Administrative Hearings for disposition. This led to the final hearing that has been described.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Having claimed that the Respondent has abandoned his job position Petitioner must show that Respondent was absent from his work for three consecutive work days without authorized leave. This is in accordance with the requirements announced in Rule 22A-7.010(2)(a), Florida Administrative Code. Petitioner has carried that burden. Moreover, the fact that the Respondent was incarcerated and could not attend his duties does not excuse his absence.

15. Upon consideration of the facts and the conclusions of law reached it

is

RECOMMENDED:

That a Final Order be entered which finds that the Respondent has abandoned

his job position with Petitioner.

DONE and ENTERED this 21st day of August, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1990.

APPENDIX

The proposed facts of the Petitioner are subordinate to facts in the recommended order.

COPIES FURNISHED:

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Vernon Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, FL 32399-0458

William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 32399-1550

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

Romey O. Richardson Post Office Box 356

Glen St. Mary, FL 32040

Docket for Case No: 90-002051

Orders for Case No: 90-002051