STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK W. SIMMONS, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0740

) DEPARTMENT OF NATURAL ) RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings in Tallahassee on July 29, 1985. The appearances were as follows:

APPEARANCES

For Petitioner: Steven A. Been, Esq.

Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

For Respondent: Paolo G. Annino, Esq.

Legal Services of North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32303

This cause arose upon a notice issued from the Respondent to Petitioner dated January 11, 1985 in which it notified the Petitioner that it deemed him to have abandoned his position of employment with the Respondent and to have effectively resigned his career service employment position with the Respondent, in accordance with Rule 22A-7.10(2), Florida Administrative Code. The Petitioner, Jack Simmons, availed himself of his right to contest this initial agency decision and the matter ultimately came on for formal hearing on the above date.

At the hearing the Petitioner presented the testimony of Jack Simmons, Joyce Jones, Ginger Hartsfield and C. W. Hartsfield and the Petitioner presented Exhibits A., B, and C, all of which were admitted into evidence. The Respondent presented the testimony of C. W. Hartsfield, Johnny Johnston, Charles Wesley Smith, Joseph F. Knoll and James A. Cooke. The Respondent presented nine exhibits, all of which were admitted into evidence.

ISSUES

The issues to be resolved in this proceeding concerns whether the Petitioner should be deemed to have abandoned his career service employment position with the Department of Natural Resources and, therefore, whether the Department of Administration should issue a final order to that effect.

The parties presented Proposed Findings of Fact and Conclusions of Law which are dealt with in this Recommended Order and, additionally, are addressed in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. For approximately two years and ten months the Petitioner, Jack W. Simmons was employed by the Department of Natural Resources at the Maclay Gardens State Park in Tallahassee, Florida. On January 7, 8, 9, 10 and 11, 1985, Simmons was scheduled to work at his position at Maclay Gardens. Simmons did not appear for work on those days and did not seek prior authorization to be absent from work on those days. Simmons did not notify the Department of Natural Resources of his absence or the reasons there for on those days. Jack Simmons had been absent in the past for various reasons including a severe back problem associated with severe back pain. Simmons was largely immobilized during the week of January 7, 1985 and was unable to report to work because of severe back pain. He was unable to stand erect and unable to walk without great difficulty. As established by Joyce Jones, his neighbor, he was able to very slowly and painfully go to the door to let her in his apartment while dressed in a housecoat. He lived on the second floor in an apartment at the top of approximately twenty stairs. He was unable to cook for himself or to dress himself to the extent that he could not put on shoes and rested primarily in a reclining chair.

2. Mr. Simmons at the time in question did not have a telephone and testified that he felt the nearest telephone was approximately three quarters of a mile away. He did not inquire of any of his neighbors as to whether they had a telephone and could report the reason for his absence to his employer, however. His neighbor, Joyce Jones, who assisted in feeding him and caring for him during this week when he was suffering severe back pain, established that she had asked him on January 9th whether he wished her to call his employer to report his absence. He declined her offer, intimating that he would call his employer later himself. Neither Simmons nor anyone else ever called his employer to report his absence or the reasons for his absence.

   
   

3. There is no doubt that Mr. Simmons was severely incapacitated on the day in question and required the assistance of Ms. Jones to clean his house, do his laundry, cook for him and purchase medicine for his Lack pain. On one occasion she observed him crawling on the floor in an effort to get back in his reclining chair and on another occasion she observed his inability to get out of the bathtub. There is no dispute concerning the immobilizing nature of Mr. Simmons' illness.

   
   

4. Mr. Simmons did not have a telephone and, although his employer previously suggested that he get a telephone, his employer did not require that he do so, merely requiring that he inform them of any absences and the reason therefor. Mr. Simmons maintained that on January 9th, the third day of Mr. Simmons' unreported absence, he was on his way to a telephone to call his employer and report his absence and its reasons when Major Johnston, his employer and supervisor, stopped outside his home and verbally informed him he was fired. That testimony is belied by that of Major Johnston, however, who established that he went to Simmons' house January 11th, a Friday, and not January 9th, a Wednesday. Major Johnston's testimony is accepted over that of Mr. Simmons and Joyce Jones, neither of whom could remember with certainty whether it was January 9th or not when this episode purportedly occurred and because, throughout his testimony, Mr. Simmons candidly admitted he was not able to recall dates and times very well. Major Johnston's version of his whereabouts on January 9th was corroborated by his co-workers, who, together with Johnston, established that Johnston was at a meeting all day with his employers and supervisors on January 9th and only left that meeting during that entire work day to attend a lunch gathering with the same personnel. They immediately returned together from the restaurant to the remainder of the meeting. Indeed, Major

   Johnston established that he was at a park district manager's meeting all day on both January 9th and 10th, except for the lunch breaks when he lunched in the company of other co-workers who were also in attendance at the meeting, some of whom testified in corroboration of his testimony. Accordingly, Major Johnston's version of the events in question on January 9th and 11th, is accepted over that of Mr. Simmons and Ms. Jones.

   
   

5. Major Johnston had intended to go on annual leave from his position on January 11th, but because he was directed by his superior to visit Simmons for the purpose of terminating him from employment, he worked that morning and only took annual leave on that afternoon. His testimony as to his whereabouts on January 9th was corroborated by C. W. Hartsfield, Chief of the Bureau of Park Management, by Joseph Knoll, Assistant Chief, and by James A. Cook, a former deputy director of park operations, all of whom were in Johnston's presence all that day. Joseph Knoll discussed Simmons' unauthorized absence situation with Major Johnston on January 9th and 10th and on January 10th instructed Major Johnston to wait until the next day, Friday, January 11th, and on that day go to Simmons' home to make sure he was not hospitalized before the Department of Natural Resources took any action against Mr. Simmons' employment status.

   
   

6. Late on the morning of January 11th, Major Johnston reported to Joseph Knoll that he had visited Mr. Simmons that morning and had notified him of his termination from employment that morning, January 11th. Mr. Simmons was then removed from the payroll and other benefit entitlements effective at 5:00 P.M., January 9th, the third day of the unauthorized absence in question. In the face of the testimony of Major Johnston concerning the termination on January 11th, Mr. Simmons opined only that "I believe it was January the 9th", or words to that effect. His neighbor who cared for him during his illness, Joyce Jones, simply could not remember on what date Simmons told her he had been terminated. Major Johnston had earlier signed and delivered to Simmons a letter warning him that if he had one more unauthorized absence it could result in the loss of his job. During 1984 Mr. Simmons had received a written reprimand for unauthorized absence and tardiness and for similar infractions later in that year had received a three-day suspension from employment. It was at this point that Major Johnston signed and gave him the letter warning him that any more unauthorized absences could result in the loss of his employment.

7. Simmons maintained that he was totally bedridden, without telephone and that he lived at the corner of Park and Franklin Streets in Tallahassee, approximately three-quarters of a mile from the nearest telephone. His own witness, however, his neighbor, Joyce Jones, established that she visited him and he was able to painfully and laboriously come to the door and let her in and tell her of his back problems. On those and succeeding days she cared for and cooked, fetched him medicine and the like and Simmons never asked her to call his employer on his behalf although she offered to call. Simmons had other neighbors, but never asked any of them to call for him to report his absence, either. Although Mr. Simmons was undisputedly gravely ill and unable to walk any distance to use a telephone, there is no doubt that he had an opportunity to report his absence and its reasons to his employer through neighbors, one of whom had even offered to do so, but he had declined that opportunity after being previously warned on two occasions about the importance of reporting his absence to his employer. The Petitioner was given written notice of Respondent's initial determination that he had abandoned his position for in excess of three days and notice of his right to a hearing to contest that determination, as shown by Respondent's Exhibit One, in evidence.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57 (1), Florida Statutes.

   
   

9. In view of the foregoing Findings of Fact and the evidence of record it must be concluded that Respondent established that Mr. Simmons forfeited his position of employment with the Department of Natural Resources in view of the mandate of Rule 22A-7. 10 (2) (a) which provides:

   
   

   "An employee absent without authorized leave of absence for three consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service."

   
   

10. Mr. Simmons was absent without authorized leave commencing on January 7, 1985, a Monday. By the end of the day on January 9th, he had been absent without authorized leave for three consecutive workdays. Thus, he must be deemed to have abandoned his employment. Although the Petitioner argued that

    he was physically unable to come to work and phvsical1v unable to seek telephonic authorization for his absence, no medical evidence of this was offered. Be that as it may it is apparent that Mr. Slmmons, who lived in a second floor apartment, was unable to journey any distance at all from his residence to use a telephone, but that he did have available and willing messengers in the form of Joyce Jones or other neighbors who he failed to consult who could have assisted him in reporting his absence. He failed to avail himself of the opportunity to use the neighbor's phone or to have Ms. Jones phone his employer.

    Thus, it could not be said that Mr. Simmons was unable to seek authorization for his absence. He had been duly notified and warned on more than one occasion of the importance of his responsibility to make arrangements to notify his employer concerning absences from employment. He missed work due to back pain in the past and had been reprimanded and suspended in the fairly recent past for failing to report his absence to his employer.

    
    

11. Petitioner contended that he should not be deemed to have abandoned his position because the Department made an error in the letter which notified him of his right to contest his determination of abandonment and seek a 120.57(1) hearing to dispute his involuntary termination. Rule 22A-7.10(2)(b), Florida Administrative Code requires:

    
    

    "Each employee separated under conditions of abandonment of position shall be notified in writing . . . such notification shall inform the employee of his rights to petition for review of the agency's action . . ."

    
    

12. The Department must be deemed to have complied with this rule, as demonstrated by Respondent's Exhibit 1. Simmons was informed that he was deemed to have abandoned his position by absence without authorized leave in excess of three days and accurately informed him of his apoca1 rights. Mr. Simmons timely availed himself of those appeal rights and initiated and prosecuted this proceeding. The purpose of such a rule is to provide the employee with a clear point of entry to seek a formal administrative proceeding to contest such a "free-form" determination of abandonment. The rule does not in itself require any actual specification of the dates of purported unauthorized absence. The letter notice issued to Petitioner Simmons by Department of Natural Resources implies that Friday, January 11th, was the tenth day of unauthorized absence when that admittedly was an error and in fact that was only the fifth

    day of unauthorized absence. The letter does, however, give notice of the actual days of unauthorized absence being January 7th through January 11th, thus, any due process requirement of notice to Mr. Simmons was met. The letter's incorrect assertion that Simmons was also absent without leave on January 2nd through 6th, was conceded to be in error, but the error is immaterial. That frailty in the notice in no way prevented Mr. Simmons from preparing a case to attempt to show that he had not been absent without leave on January 7th through 11th. Thus, the record clearly establishes that Mr. Simmons was properly notified of his rights to seek redress concerning the Department's notification to him of its position that he had abandoned his employment.

    
    

13. Based upon the above Findings of Fact and determination of the credibility of the witnesses it must be found that Mr. Simmons was indeed terminated on January 11, 1985 and not on January 9, 1985, as he had attempted to show. The fact that he was taken off the payroll at the end of working hours as of 5:00 P.M. on January 9th and removed from entitlement to any other employee benefits and other indicia of employment on that date, does not establish that he was fired on January 9th instead of January 11th. The termination on January 11th related back to the close of business on January 9th for purposes of payroll and other benefit accruals because, under the pertinent rules, the Department would not be justified in paying an employee beyond the third day of an abandonment.

    
    

14. In summary, in consideration of the above Findings of Fact and Conclusions of Law, it must be concluded that Jack Simmons abandoned his position of employment with the Department of Natural Resources.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a final Order be entered by the Department of Administration finding that Jack W. Simmons abandoned his position of employment for three consecutive unauthorized days of absence, from January 7th through January 9, 1985, as envisioned by Rule 22A-7.10(2), Florida Administrative Code.

DONE and ORDERED this 27th day of December, 1985, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer ~

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkwav Tallahassee, Florida 323C1 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1985.

COPIES FURNISHED:

Steven A. Been, Esq. Assistant General Counsel

Department of Natural Resources 3900 Commonwealth Boulvard

Tallahassee, Florida 32303

Richard L. Kopel, Esq. Deputy General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Paolo G. Annino, Esq.

Legal Services of North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32303

Kevin Crowley, Esq. General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32302

APPENDIX - CASE NO. 85-0740

Rulings on Petitioner's Proposed Findings or Fact:

The Petitioner's Proposed Findings of Fact are in unnumbered paragraphs and We ruled upon by paragraphs in the sequence they appear in the Petitioner's Proposed Findings of Fact and Conclusions of Law. In large part the Proposed Findings of Fact consist of discussion of testimony and argument of counsel, but to the extent they assert Proposed Findings of Fact they are ruled upon as follows:

1. Accepted.|

   
   

2. Accepted in part but rejected inasmuch as this paragraph depicts that the nearest telephone was three-quarters of a mile away, which Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record.

   
   

3. Accepted to the extent that it depicts Simmons intent to contact his employer, but rejected insofar as it has already been found that Simmons failed to actually contact his employer.

   
   

4. Accepted, but this paragraph of Proposed Findings is subordinate to and unnecessary to the Findings of Fact reached in the Recommended Order on the malarial issues presented and is not dispositive of the material issues of fact raised in this case.

   
   

5. Accepted in that there is no dispute as to the severity of Jack Simmons' illness, but this Proposed Finding of Fact concerning the severe nature and immobilizing nature of his illness is subordinate to, and unnecessary to the Findings of Fact reached in the Recommended Order concerning Simmons' failure to take advantage of opportunities to notify his employer of the reasons for his absence and is therefore not dispositive of the material issues of fact presented in this proceeding.

   
   

6. This Finding is rejected to the extent that it asserts that Simmons had no opportunity to contact his employer which Proposed Finding does not comport with the competent, substantial, credible evidence of record, although it is true that it is undisputed that Simmons lacked a telephone and his neighbor, Joyce Jones, lacked a telephone.

   
   

7. This Proposed Finding of Fact is rejected a., not in accordance with the competent, substantial, credible evidence of record in that it has been found that Simmons did not attempt to contact his employer, although it is true that his neighbor,

   Joyce Jones, offered to call his employer and at that time. Simmons rejected the offer stating that he intended to call the employer himself. He simply never did so when he had the opportunity.

   
   

8. This Proposed Finding is accepted as in accordance with the competent, substantial credible evidence of record, but is subordinate to and immaterial to the Findings of Fact made disposing the material issues presented. The Department of Natural Resources did indeed not require him to obtain a telephone, but its procedure for reporting lateness or absence did envision the use of a telephone and his superiors were aware that he did not have a telephone, however, this Proposed Finding is subordinate to the Finding made to the effect that although Simmons had no telephone he did not avail himself of ample opportunity to use a neighbor's phone in his own apartment building or have Ms. Jones phone his employer for him, which she had offered to do and which he refused.

   
   

9. This Finding is rejected as not in accordance with the competent, substantial, credible evidence of record in that the testimony and evidence of record in the above Findings of Fact made in the Recommended Order show that Simmons had the ability to contact his employer and failed to avail himself of it.

   
   

10. This Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record.

    
    

11. This Proposed Finding of Fact is rejected as not in accordance with the competent, substantial, credible evidence of record to the extent that it indicates that Simmons was fired on January 9th instead of January 11th.I

    
    

12. Accepted.

    
    

13. Rejected as not in accordance with the competent, substantial, credible evidence of record.

    
    

14. Rejected as not in accordance with the competent, substantial, credible evidence of record.

    
    

15. This Finding is accepted to the extent that it depicts that Simmons was removed from all employee benefits including payroll effective 5:00 P.M. January 9, 1985, however that is subordinate to and not dispositive of the issue resolved in the Finding of Fact in the Recommended Order which establishes that based upon the competent, substantial, credible testimony and evidence of

    record, Simmons was indeed terminated by his employer on January 11, 1985, not January 9th.

    
    

16. Rejected as not in accordance with the competent, substantial, credible evidence of record.

    
    

17. Rejected as not in accordance with the competent, substantial, credible evidence of record.

    
    

18. Accepted to the extent that the Notice of Termination indicated that Simmons was on unauthorized leave from January 2nd through January 6, 1985. The Respondent has admitted that is an error, but is an immaterial error since the actual disputed dates in question begin Monday, January 7, 1985. The mere fact that the termination notice contained more depicted dates of unexcused absences than were admittedly the case is an immaterial error and this last Proposed Finding of Fact is subordinate to and immaterial to disposition of the material issues of fact presented.

Respondent's Proposed Findings of Fact:

1. Accepted.

   
   

2. Accepted.

   
   

3. Accepted.

   
   

4. Accepted

   
   

5. Accepted.

   
   

6. Accepted.

   
   

7. Accepted.

   
   

8. Accepted. (It should be noted that the Respondent has not numbered all of its Proposed Findings of Fact paragraphs. The Hearing Officer in making 8 specific Rulings on Proposed Findings of Fact of Respondent has numbered those paragraphs 1 through 8 in making these specific Rulings).

Docket for Case No: 85-000740

Orders for Case No: 85-000740