STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARA M. PENNEY, )

)

Petitioner, )

)

v. ) CASE NO. 85-1530

) DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this cause was held on September 20, 1985, in Tallahassee, Florida, before Diane A. Grubbs, a hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry G. Traynham, Esq.

PATTERSON and TRAYNHAM

1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32315

For Respondent: Ruth L. Gokel, Esq.

Department of Insurance 413-B Larson Building Tallahassee, Florida 32301

ISSUE

Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.

BACKGROUND

By letter dated February 12, 1985, The Department of Insurance (Department) informed the petitioner that she had abandoned her position by unexcused absence pursuant to Rule

22A-7.10(2)(a), Florida Administrative Code. By letter dated February 26, 1985, the petitioner asked for a formal proceeding before the Department of Administration. Because of certain deficiencies in the letter, petitioner was given leave to file an amended petition, which she did on April 23, 1985. By order dated May 13, 1985, the Department of Administration requested the assignment of a hearing officer from the Division of Administrative Hearings to conduct further proceedings.

At the hearing the parties agreed that the Department had the burden of proof and therefore it presented its case first, notwithstanding the designation of Mrs. Penney as the petitioner. The Department presented the testimony of five witnesses and introduced three exhibits into evidence. The petitioner presented the testimony of six witnesses and introduced one exhibit into evidence.1

Both parties timely filed proposed findings of fact and conclusions of law. A ruling has been made on each proposed finding of fact in the appendix to this order.

FINDINGS OF FACT

1. Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor.

   
   

2. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody.

   
   

3. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence.

4. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect.

   
   

5. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation.

   
   

6. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47)

   
   

7. However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They

   immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes.

   
   

8. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration.

   
   

9. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave.

   
   

10. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2

11. After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department.

    
    

12. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not

    consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts.

    
    

13. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule.

    
    

14. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address.

    
    

15. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service.

    
    

16. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity.

    
    

17. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11

    p.m. in the evening.

18. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department.

    
    

19. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired.

    
    

20. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau.

    
    

21. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally.

    
    

22. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's

    circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave.

    
    

23. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied.

    
    

24. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

26. Section 22A-7.10(2)(a), Florida Administrative Code, provides:

    
    

    (2) Abandonment of Position -

    
    

    1. 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.

       
       

       This rule, referred to as the abandonment rule, creates a presumption that an employee who is absent from work for the prescribed period of time without authorized leave has abandoned his or her position and, in effect, has resigned from the Career Service. In Cook v. Division of Personnel, Department of Administration, 356 So. 2d 356 (Fla. 1st DCA 1978), the court explained the purpose of the rule as follows:

       
       

       While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some point at which the Division may be able to say that the employee is not returning,

       process the paper work and refill the vacant position.

       
       

       By applying the rule, the state is able to provide for "swift replacement of ineffective public employees." Hadley v.Department of Administration, 411 So. 2d 188 (Fla. 1982).

       
       

27. However, the presumption created by the abandonment rule is a rebuttable presumption. An employee who had been deemed to have abandoned his position is entitled to a "review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position." Rule 22A- 7.10(a)(2), Florida Administrative Code. Briefly, the facts in this case are as follows: Mrs. Penney was unable to return to her job on February 6, 1985, due to circumstances beyond her control; she contacted the Department as soon as possible, through the only means available, and requested that she be granted leave due to an emergency; the Department was aware of the nature of the emergency; the Department never considered the leave request or made a decision to disapprove the request; although her leave request was never disapproved, the Department informed Mrs. Penney, after the fact, that her leave had been unauthorized. These circumstances do not constitute abandonment of position.

    
    

28. Leave is not automatically authorized simply because there is an emergency which requires the employee to be absent from work. If, due to an emergency, an employee is absent without being able to request prior approval for the absence, the agency may take any 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.

       
       

       Rule 22A-8.02(5)(a), Florida Administrative Code. The first hours of Mrs. Penney's absence were governed by the above rule. She did not return to work at 10:00 a.m. and had not requested prior approval for the absence. However, she did make a request

       for leave prior to her absences on the following days. Rule 22A-8.02(5)(b), Florida Administrative Code, applied to that situation. It states:

       
       

       1. 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. (e.s.)

       
       

       The above rule indicates that when a request for leave is made, the request should be considered and, at the agency's discretion, either approved or disapproved. If the request is disapproved, leave taken thereafter by the employee is unauthorized.

       
       

29. In this case, Mrs. Penney's request for leave was never disapproved. Not one person in the Department ever made a decision to deny her request for leave. Her request was simply never considered. Further, there was no evidence presented to show that if it had been considered it would have been denied due to the circumstances involved. Thus, this case is quite different from the cases in which an abandonment of position has been found.

    
    

30. In Florida State University v. Brown, 436 So. 2d 287 (Fla. 1st DCA 1983), the court reversed a final order finding that the employee did not abandon his position. The court pointed out that after the employee's approved leave time had expired, the employee "never contacted the employer to request an extension of leave." The court held that "the agency was not [due to its prior conduct] obligated to excuse the employee's failure to request an extended leave of absence."

    
    

31. In Department of Transportation v. F. D. Morgan (DOAH Case 84-4026, final order issued June 21, 1985), cited by the respondent, the Department of Administration held that an agency does not have an affirmative obligation to seek out an absent employee and inform him that he is on unauthorized leave even though the agency knows where the employee is. The case does not hold that an agency can ignore a request for leave when one has been made.

32. In the other case cited by respondent, Nelson Bell v. Department of Health and Rehabilitative Services (DOAH Case 84- 2951, final order issued March 14, 1985), the employee was notified that leave was approved through April 27, 1984, and that he either had to report to work on Monday, April 30th, or he had to submit a written request for leave prior to that date. The employee did neither and an excess of three consecutive days passed without the agency receiving any communication from the employee.

    
    

33. In none of the above cited cases, or in any other case found by the undersigned, was an abandonment of position found when leave had been requested and the request had not been acted upon. It must be concluded that although an agency has no obligation to approve a request for leave, it does have an obligation to consider the request and make a determination as to whether leave should be approved or disapproved before deciding that an employee has abandoned his position.

RECOMMENDATION

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

RECOMMENDED that a final order be entered ruling that the circumstances presented by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985.

DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.

ENDNOTES

1/ Petitioner was authorized to file a late exhibit, the deposition of Alnis Neville; however, the deposition was not filed.

2/ Mrs. Penney had 15.2 hours of accumulated annual leave time, not enough to cover the entire time requested. Apparently Mr.

Sharp never tried to find out if he had the authority to grant leave without pay; however, since the acting supervisor was informed by Mr. Yohner that she should determine whether leave would be granted, it would appear that Mr. Sharp would have had the same authority.

3/ Rule 22A-7.10(2)(a), Florida Administrative Code.

APPENDIX

Petitioner's Proposed Ruling and Related Paragraph in RO Findings of Fact

Paragraph 1 Accepted (RO Paragraph 1)

Paragraph 2 Accepted, but modified in accordance with Mrs. Penney's testimony

(RO Paragraph 20)

Paragraph 3 Accepted (RO Paragraph 2). That Mrs. Penney has 4 children is true but irrelevant.

Paragraph 4 Accepted (RO Paragraph 3)

Paragraph 5 Accepted as modified ( RO Paragraphs 4, 5 and 6.

Paragraph 6 Accepted (RO Paragraph 16)

Paragraph 7 Accepted as modified (RO Paragraphs 16 & 17)

Paragraph 8 Accepted (RO Paragraph 7)

Paragraph 9 Accepted (RO Paragraphs 6 & 8)

Paragraph 10 Accepted (RO Paragraphs 8 & 10)

Paragraph 11 Accepted (RO Paragraph 9)

Paragraph 12 Accepted (RO Paragraph 8)

Paragraph 13 Accepted (RO Paragraphs 11, 12 & 13)

Paragraph 14 Accepted (RO Paragraphs 13 & 14)

Paragraph 15 Accepted (RO Paragraphs 14 & 15)

Paragraph 16 Accepted (RO Paragraph 18)

Paragraph 17 Accepted (RO Paragraph 21)

Paragraph 18 Accepted (RO Paragraphs 21 & 24)

Respondent's Proposed Findings of Fact_

Paragraph 1 Accepted in conclusions of law

Paragraph 2 Accepted, generally (RO Paragraph 1) Paragraphs 3 & 4 Accepted (RO Paragraphs 2 & 3)

Paragraph 5 Accepted in part, rejected in part as set forth in RO Paragraphs 4, 5 & 8

Paragraph 6 Accepted as to first two sentences (RO Paragraph 4 & 18). Accept that leave was never approved or disapproved (RO Paragraph 21)

Paragraph 7 Accepted (RO Paragraph 15)

Paragraph 8 Accepted (RO Paragraphs 19 & 20)

Paragraph 9 Accepted that Department employees construed the rule as set forth in last sentence of RO Paragraph 22. Second and third sentences true but irrelevant. Last sentence rejected

by contrary findings and conclusions. Paragraph 10 Accepted to the degree set forth in RO

Paragraphs 8 & 4. Reject the third sentence as irrelevant, since the petitioner contacted the respondent, and to the degree it is a conclusion of law.

Paragraph 11 Accepted to the degree in RO Paragraphs

16, 21, 22, 8, & 4. Reject sentence

3 (RO Paragraph 6 and footnote 2). Reject sentence 6 (RO Paragraph 7 & 8). Reject sentence 8, although a accept that Mr. Penney implied, or Ms. Veigas inferred, that Mrs. Penney was out of town (RO Paragraph 4). Accept that the Department had not duty to grant leave (RO Paragraph 22)

Paragraph 12 First 2 sentences accepted (RO Paragraph

10 and footnote 2). Rejected as to Mrs. Penney's efforts (RO Paragraph 17). Accept that granting of leave

is discretionary and that an informed decision should be made (RO Paragraph 22). Last 3 sentences rejected as

cumulative.

Paragraph 13 Rejected as irrelevant.

COPIES FURNISHED:

Jerry G. Traynham, Esq. Patterson and Traynham 1215 Thomasville Road Post Office Box 4289 Tallahassee, FL 32315

Ruth L. Gokel, Esq. Department of Insurance 413-B Larson Building Tallahassee, FL 32301

Gilda H. Lambert Secretary

Department of Administration Carlton Building Tallahassee, FL 32301

Daniel C. Brown, Esq. General Counsel

Department of Administration Carlton Building Tallahassee, FL 32301

Docket for Case No: 85-001530

Orders for Case No: 85-001530