STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD F. WOODARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3386

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 31, 1990 in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Rodney W. Smith, Esquire

Gloria W. Fletcher, Esquire

515 North Main Street, Suite 300 Post Office Box 1208 Gainesville, Florida 32602

FOR RESPONDENT: Perri M. King

Assistant General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUE

Whether or not Respondent Department of Corrections correctly applied the presumption of 22A-7.010(2)(a) F.A.C. permitting the agency to deem Petitioner to have resigned from the career service system when he had been absent for three consecutive days.

PRELIMINARY STATEMENT

The burden to go forward and of proof in these proceedings is upon Respondent, who presented the oral testimony of Harry Tison, Captain, Florida State Prison; Marion Bronson, Personnel Manager, Florida State Prison; and Paul Decker, Assistant Superintendent for Programs, Florida State Prison. Petitioner and Respondent had admitted four joint exhibits. Petitioner presented no further case.

No transcript has been provided, but the timely-filed proposed findings of fact of each party have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. At all times material, Petitioner was employed by the Department of Corrections as a full-time career service employee. On July 13, 1984, he was ranked as a Correctional Officer I at Florida State Prison (FSP).

   
   

2. On March 2, 1990, Petitioner had been placed on workers' compensation due to a back injury. On Thursday, April 5, 1990, Dr. W. David Sikes of the Bradford Chiropractic Center signed a medical release permitting Petitioner to return to light duty on Monday, April 9, 1990. Dr. Sikes was apparently the authorized treating physician to whom the agency had currently obligated itself pursuant to Chapter 440 F.S. [The Florida Workers' Compensation Act]. A previous physician had released Petitioner for full-duty work on April 3, 1990.

   
   

3. Petitioner was present in the office of Personnel Manager Marion Bronson on Friday, April 6, 1990. At that time, Mr. Bronson told Petitioner to report for work on the first shift (8:00 a.m. to 5:00 p.m.) on Monday, April 9, 1990. This meant Petitioner would be doing mail room duty during the day instead of his regular duties on his regular shift of midnight to 8:00 a.m. Petitioner told Mr. Bronson he could not work the first shift due to his needing to be home to take of his invalid wife. To this, Mr. Bronson replied that the first shift was the only light duty available.

   
   

4. On Friday, April 6, 1990 Petitioner did not refuse to come in to work the first shift on Monday, April 9, and he did not tell Mr. Bronson that he was already signed out on annual leave for that date. Nonetheless, Mr. Bronson was left with the impression at the end of their meeting that Petitioner would not come back to light-duty work on Monday.

   
   

5. Petitioner did not report for work on the first shift on April 9, 10, or 11, 1990 (Monday, Tuesday and Wednesday). On Wednesday, April 11, 1990, Mr. Bronson mailed Petitioner a letter that read, in pertinent part:

   
   

   You have been carried in unauthorized leave without pay status since April 9, 1990. You were also carried on unauthorized leave without pay on April 3, 1990.

   You are hereby instructed to return to duty at 8:00 a.m. the day after you receive this letter. If you do not return to duty on that date it will be deemed that you have abandoned your position at Florida State Prison and you will be dismissed.

   
   

6. In the past, the FSP personnel office usually made further efforts to contact missing employees after such a letter had been sent, but no such attempts were made in this instance. Normally, FSP gives employees an opportunity to call in and rectify absentee problems but deems it abandonment if the employee does not respond. At no time subsequent to April 6, 1990 did Petitioner contact anyone at FSP regarding his absence.

   
   

7. Petitioner did not actually receive the April 11 letter until Friday, April 13. Petitioner did not report for work on Saturday, April 14, Sunday, April 15, or Monday, April 16. Saturday would have been a regular workday for Petitioner. However, Petitioner's usual days off were Sunday and Monday, and nothing had been said by Mr. Bronson about altering Petitioner's workdays.

8. On Monday, April 16, Mr. Bronson mailed Petitioner a letter that read, in pertinent part:

   
   

   This is to inform you that in accordance with Section 22A-7.010(2), F.A.C., you have been deemed to have abandoned your position as Correctional Officer I and resigned from

   the Career Service System effective April 14, 1990. A copy of Section 22A-7.010(2) is enclosed for your information.

   You have been absent from duty for at least three consecutive workdays without authorized leave as follows: April 10, 11, and 12, 1990. Please be advised that you have been dropped from the payroll effective the close of business April 14, 1990.

   
   

9. Unbeknownst to Mr. Bronson, Petitioner had exercised preapproved annual leave for the period of April 10-14, 1990. None of Petitioner's superiors advised Mr. Bronson of this fact. There was no notation to this effect in Petitioner's personnel file in Mr. Bronson's office. It was Mr. Bronson's testimony that it was better personnel management and he would have preferred to have Petitioner drawing annual leave during this period than to be paying him full pay for makeshift light duty. If Petitioner had requested annual leave on April 6, 1990, Mr. Bronson would have granted it.

   
   

10. As of April 14, 1990, Petitioner had "banked" 119.75 hours of annual leave time which would have been sufficient to cover his April 10-14, 1990 vacation or "no show" days. Additionally, he also had available 26.5 hours of sick leave but this sick leave was subject to certain deductions and adjustments which had allowed the agency to keep Petitioner on at full pay the previous week while technically he was only eligible for a reduced amount based on workers' compensation.

    
    

11. In accord with standard FSP policy, Petitioner had previously submitted an annual leave request form on October 16, 1989 to request leave for the week of April 10 through April 14, 1990. This form had been approved by his immediate superior, who at that time was his shift supervisor, Officer Gaskin. Officer Gaskin was the correct superior to make such approval. Mr. Bronson has nothing to do with the approval of leave under such circumstances. Harry Tison, who became Petitioner's shift supervisor in April 1990 while Petitioner was still out on workers' compensation leave, was not aware of Petitioner's preapproved annual leave until Mr. Bronson's office began making inquiries after the April 16 letter, but at that time, Tison was able to refer to a leave calendar posted in his area which showed that Petitioner was expected to be out on annual leave on those days. From that information, Officer Tison, by reason of his familiarity with the FSP system and hierarchy, could infer that Petitioner's leave had been approved by FSP's highest command figure, "the Colonel."

    
    

12. Some witnesses alluded to FSP policy that even preapproved annual leave requests constituted only tentative approval unless the employee checked with his supervisor a week before actually exercising his leave so as to be sure that the preapproved leave had not been revoked due to an employee crunch, but there is no such rule or printed policy of the Department of Corrections or FSP, and the evidence is insufficient to establish such a vague policy as uniform or binding on Petitioner. Also, in this instance, the week before, Petitioner was

    away from work most of that week on workers' compensation disability, and there is no evidence of any employee crunch which would have altered the prior annual leave approval.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

14. Rule 22A-7.010(2)(a) F.A.C. provides as follows:

    
    

    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 of appeal to the Public Employees Relations Commission; however, any such employee shall have the right to petition the department for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

    
    

    However, the rule creates only a rebuttable presumption See, 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). That presumption has been overwhelmingly rebutted here. Even assuming Petitioner was absent without leave on April 9, Petitioner is entitled to rely on the first set of representations of the agency that he was on legitimate annual leave for April 10-14 and had regular days off April 15 and 16. See, by analogy, Desilva v. DOT, 15 FLW D 1809 (4th DCA July 11, 1990).

    
    

15. The agency has failed to establish that Petitioner was, in fact, absent three consecutive days not covered by preapproved annual leave. The fact that the right hand of an agency may not know what the left hand is doing is not sufficient at law for Respondent, who bears the burden of proof here, to prevail.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order finding that Petitioner has not abandoned his position and returning him to the appropriate position with back pay and emoluments, subject to any appropriate setoffs under the Workers' Compensation Act and any mitigation from other employment.

DONE and ENTERED this 19th day of August, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 19th day of August, 1990.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

Petitioner has filed only a "Final Argument" and that is essentially legal argument and proposed conclusions of law as opposed to proposed findings of fact which are entitled to a ruling pursuant to Section 120.59(2) F.S. Moreover, the format does not lend itself to intelligible rulings since no sentence is numbered.

Respondent's PFOF:

1-6 Accepted.

1. Accepted except for the last sentence, which does not comport with the testimony heard.

2. Accepted.

3. Rejected in FOF 13, which reflects the greater weight of the credible evidence.

4. Accepted but subordinate.

5. - 15 Accepted.

COPIES FURNISHED:

Perri M. King

Assistant General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Rodney W. Smith, Esquire Gloria W. Fletcher, Esquire

515 North Main Street, Suite 300 Post Office Box 1208 Gainesville, Florida 32602

William A. Frieder, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 90-003386

Orders for Case No: 90-003386