STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE L. CLARIDY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4024

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Diane A. Grubbs, a hearing officer of the Division of Administrative Hearings, on October 18, 1985, in Sarasota, Florida.

APPEARANCES

For Petitioner: Michael T. Burns, Esquire

BURNS & PURDY, P.A.

46 North Washington Boulevard, Suite 3 Sarasota, Florida 33577

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064

ISSUE

Whether, under the facts and circumstances of this case, petitioner is deemed to have abandoned his position and resigned from the Career Service.

BACKGROUND

By letter dated April 5, 1984, Mr. Claridy was informed by the Department of Transportation (Department) that he was deemed to have resigned his position in the Career Service due to his failure to report to work on April 2nd, 3rd, and 4th. By letter dated April 18, 1984, Mr. Claridy petitioned for review of the respondent's action. On November 9, 1984, the matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing the Department presented the testimony of three witnesses: Helen B. Miller, who processes the paperwork for the Sarasota Maintenance Office, Daniel E. Skinner, petitioner's immediate supervisor, and Dwayne Webber, the District Personnel Manager. The Department also introduced seven exhibits into evidence. Mr. Claridy testified on his own behalf and presented the testimony of Jerome Campbell, a co-worker.

Proposed findings of fact and conclusions of law were timely filed by both parties on December 2, 1985, and have been carefully considered. A ruling has been made on each proposed finding of fact in the appendix to this order.

FINDINGS OF FACT

1. Mr. Willie L. Claridy was an employee of the Department of Transportation for 2 or 3 years and was under the immediate supervision of Daniel E. Skinner at the Sarasota Maintenance Office for approximately a year, including March and early April of 1984.

   
   

2. On or about Monday, March 26, 1984, while in the outside shop area at his place of employment, Mr. Claridy mentioned taking a vacation to some fellow employees. He said he was going home to a family reunion. The employees moved into the office area, and the conversation continued. Mr. Skinner, who was petitioner's supervisor, Mr. Campbell, Mr. Claridy, and two others were present in the office. During the conversation in the office, Mr. Claridy stated that he was going to take a vacation; however, he never specifically asked for leave, he was not told that he could have leave, and no specific dates were mentioned. 1/

   
   

3. Although Mr. Skinner could not recall the discussion regarding Mr. Claridy's vacation, he admitted that it could have taken place. However, Mr. Claridy never signed a leave slip requesting leave, and Mr. Skinner never signed a leave slip approving leave. Nevertheless, Mr. Claridy did not report for work on April 2nd, 3rd, 4th, or 5th, 1984, and did not contact his office during that time.

   
   

4. The Employee Handbook, received by Mr. Claridy on April 20, 1983, clearly states that an employee must obtain the approval of his supervisor before taking leave. Neither the handbook nor the memorandum to employees of January 1982 states that prior approval must be in writing, although the language in the handbook implies that it should be. However, Mr. Claridy was fully aware of the procedure that he needed to follow in requesting leave. On two earlier occasions when Mr. Claridy had wanted time off he had submitted leave slips and received approval from his supervisor prior to his absences from work.

   
   

5. Mr. Claridy's stated reason for not submitting a leave slip in this case in advance of his absence is neither accurate nor credible. He testified that he thought he might get called back to work during the course of his leave time due to a shortage of mechanics, and, if this occurred and he had submitted the leave slip, he would not have gotten paid for his time. 2/ However, the evidence at the hearing indicated that Mr. Claridy did not plan to be and was not in town during his absence from work, and therefore could not have been called into work. 3/ Further, Mr. Claridy stated that they might need him because they were short of help but also testified that "[w]e were caught up with all our work." Finally Mr. Claridy's return to work during a period of time when he was on authorized leave would not have adversely affected his pay or his annual leave time, and Mr. Claridy would have discovered this had he made any inquiries.

   
   

6. Mr. Skinner did not approve Mr. Claridy's leave time nor did he inform Mr. Claridy that he could submit a leave slip after his vacation. Consequently Mr. Claridy's absence from work on April 2nd, 3rd, 4th, and 5th was

   unauthorized. Mr. Claridy had received the Employee Handbook and the memorandum of January 1982 which informed him that three consecutive absences without authorized leave would result in termination of employment.

   
   

7. Mr. Claridy was properly informed by certified letter dated April 5, 1984, that having failed to report for work during the period in question and having failed to take action to notify his supervisor of the reasons for the absence he was deemed to have abandoned his position and resigned from the Career Service.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes. The Department of Administration has authority to review the facts in abandonment cases and rule whether the facts constitute abandonment of position.

   
   

9. Rule 22A-7.10(2), Florida Administrative Code, provides in part:

   
   

   1. An employee who is absent without autho- rized leave of absence for 3 consecutive work- days shall be deemed to have abandoned the position and to have resigned from the Career Service.

      
      

10. Rule 22A-8.02(4), Florida Administrative Code, provides in part:

    
    

    1. The granting of any leave of absence with or without pay shall be in writing and shall be approved by the proper authority within the agency.

       
       

11. Rule 22A-8.02(5), Florida Administrative Code, provides in part:

    
    

    1. 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.

    
    

12. The rules require that the granting of any leave of absence be in writing and that the leave be approved prior to the leave being taken, except in an emergency. The evidence presented in this case shows that Mr. Claridy was absent from work for three consecutive workdays, that there was no emergency, that leave was never granted in writing, and that the leave of absence was not approved prior to the leave being taken. The evidence further shows that Mr. Claridy was aware of the procedure to be followed to obtain an approved leave of absence, that he did not follow the proper procedure, and that his stated reason for not following the procedure was not credible or justified. Therefore pursuant to Rule 22A-7.10(2), Florida Administrative Code, Mr. Claridy is deemed to have abandoned his position and resigned from Career Service.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Department of Transportation in deeming the petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action.

DONE and ENTERED this 18th day of December, 1985, in Tallahassee, Leon County Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1985.

ENDNOTES

1/ I accept Mr. Campbell's testimony that he was present in the office the entire time the conversation occurred, that Mr. Claridy did not ask for leave, and that he could not remember any dates mentioned.

2/ He later clarified his statement, saying that he knew he would get his regular paycheck but that he didn't want to loose his annual leave time when he was actually working.

3/ Mr. Campbell testified that Mr. Claridy stated that he was "going home because there was something like a family reunion or something was going to be up there." (e.s.) Mr. Claridy stated that he received the abandonment letter dated April 5 "when I got back in town."

COPIES FURNISHED:

Michael T. Burns Esquire BURNS & PURDY, P.A.

46 North Washington Boulevard Suite 3

Sarasota, Florida 33577

Vernon L. Whittier, Jr. Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064

Gilda H. Lambert Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Daniel C. Brown, Esquire General Counsel

530 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 84-004024

Orders for Case No: 84-004024