STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY OF SOUTH FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2155

)

RICHARD POBST, )

)

Respondent, )

)

RECOMMENDED ORDER

Upon due notice, a final hearing in this cause was held on January 21, 1987, in Tampa, Florida, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carla Jimenez, Esquire

Senior Counsel for Faculty and Labor Relations

University of South Florida

4202 East Fowler Avenue, ADM 254

Tampa, Florida 33621

For Respondent: Jerry G. Traynham, Esquire

Patterson and Traynham 1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32315 ISSUE

Whether Richard Pobst abandoned his position with the University of South Florida pursuant to Rule 22A-7.10(2), Florida Administrative Code.

BACKGROUND

At the commencement of hearing the University of South Florida moved ore tenus to alter the case style in this cause to reflect Richard Pobst as Petitioner since he had requested the hearing initially. The Motion was denied because the style of this cause correctly reflects the burden or proof as upon the employer, University of South Florida.

Petitioner University of South Florida initially called three witnesses, and had admitted into evidence two exhibits. Respondent Pobst presented the oral testimony of two witnesses and had admitted seven exhibits. Petitioner then called one additional witness in rebuttal. The parties' prehearing stipulation was admitted as Hearing Officer Exhibit 1.

Several exhibits of each party were admitted in evidence subject to the opposing party's hearsay objection. Consequently, to the extent that matters contained therein constitute uncorroborated hearsay, they have not formed the basis of any finding of fact.

Upon oral stipulation of the parties, the proceedings were preserved by cassette tape recording. No transcript was provided, but each party has filed proposed findings of fact and conclusions of law within the extended time frame stipulated at hearing and subsequent extensions of time sought and agreed to by the parties. Each proposed finding of fact has been ruled on pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent Pobst had been employed by Petitioner and had obtained permanent status in the career service as a half-time University Parking Patroller, at the time he transferred to the position of Motor Vehicle Operator (MVO) on Friday, April 18, 1986. At that time, he came under the supervision of Terry Fisher, Store Supervisor of the University's Central Receiving Department. The MVO position was full time, with regular hours of 8 a.m. to 5 p.m., and Pobst was on probationary status in that job classification at all times relevant to these proceedings. Prior to being hired in that position he had been counseled by Eugene Weber, Stores Manager (supervisor to Terry Fisher), concerning abuse of leave, but the emphasis was on sick leave abuses.

   
   

2. On Monday, April 28, 1986, Pobst reported one hour late due to a weekend holdup, and immediately requested and received authorization from Fisher to take unpaid leave so as to obtain a copy of a report from the Tampa Police Department. Pobst had no annual leave available. When he transferred positions he was already in arrears for time off and already owed money for that time off. Fisher requested that Pobst telephone him later in the day. Respondent completed his business with the Tampa Police Department late in the day and did not need additional time. Nevertheless, he did not call Fisher because the work day was completed when he had the first opportunity to call in. Both Pobst and Fisher understood that Pobst would return to work no later than the beginning of the workday on Tuesday, April 29, 1986.

   
   

3. Fisher would have granted additional leave on the same terms (unpaid leave with payroll deduction) had Pobst called in, however, Pobst never called in.

   
   

4. Pobst did not report for work on Tuesday, April 29; Wednesday, April 30; Thursday, May 1; or Friday, May 2. From the time Respondent left Fisher on the morning of April 28 until the morning of Sunday, May 4, 1986, Respondent had no contact with his immediate supervisor or with any other individual in his chain of supervision at the University.

   
   

5. Late the night of April 28, Pobst was injured in a fight. At 12:30

   a.m. on April 29, Pobst was arrested for aggravated assault. The charge was ultimately dismissed by the Hillsborough County Circuit Court. However, he arrived at Hillsborough County Sheriff's Central Booking at 2:20 a.m., was booked at 4:54 a.m., and processed at 6:15 a.m. on April 29. From 2:20 a.m. until 6:15 a.m. on April 29, Pobst was either in a Booking/Releasing Section holding cell without telephones, or on a bench in the Receiving Area with two regular local-only telephones as well as two collect-only telephones that resemble pay telephones. He made one telephone call from a collect call telephone. He made that call to the information operator, in an attempt to get

   Terry Fisher's home telephone number. The call was refused by the information operator because it "was made from a collect call telephone." Respondent was not allowed to make a second telephone call at that time but was told by the officer in charge of him that he would have an opportunity later to make another call. In any case, Pobst would have been unsuccessful in getting Terry Fisher's home phone number because it was unlisted. He did not again ask to use the telephone for the remainder of April 29, 1986, either during business hours when he might have reached Fisher at work or after business hours.

   
   

6. From 6:15 a.m. until approximately 1:00 p.m. on April 29, Respondent was in a Housing and Support Section holding cell consisting of three rooms: a dayroom with collect-only telephones that resemble pay telephones; a sleeping room without telephones; and a vestibule between the sleeping and dayrooms.

   This was cell 200C/2, which is one of several individual sleeping rooms opening onto a common dayroom with collect-only telephones operable from 7:00 a.m. until 11:00 p.m. Although the sleeping area and dayroom are normally kept locked, confined persons usually have free access to both areas 24 hours a day.

   However, there are times and circumstances in which the areas are separately locked, and confined persons do not have such free access.

   
   

7. At approximately 1:00 p.m. on April 29, Respondent was moved to the infirmary for examination and on medical staff instruction was placed in cell 200C/2 "B", a lockdown cell for medical observation. This particular lockdown cell was intended for confined persons who were deemed to need psychiatric observation. In the psychiatric medical lockdown area, incarcerated persons normally are allowed out of their cells for one hour per day to take a shower, watch television, or make telephone calls. However, special circumstances or inappropriate behavior may result in an inmate being denied the opportunity to leave his cell on any given day. Respondent had no access to a telephone during the move, wait, or infirmary/dispensary visit.

   
   

8. Although Pobst's testimony emphasized his physical injuries and confused state of mind resulting from the assault by third persons leading up to his arrest in the midnight hours of April 28-29, he also related that while awaiting medical examination on April 29, he engaged in a fight with three police officers who requested that he undress for the physical examination. It appears to be this belligerent attitude which resulted in his being confined in restraints thereafter. Respondent's candor and demeanor and various inconsistencies in his testimony do not render him credible on the issue of inability to contact his employer during the whole of the time prior to his being placed in restraints or the period after he was released therefrom. His testimony that he was so confused at all times that he could not ask for a phone is not believable in light of the police log that he was in "good" condition on May 2, the testimony of Officer Blackwood that even a very "bad" prisoner would get to use the phone or write a letter if he just asked to do so, and that the property inventory showed Pobst had available $.85 for stamps or a local phone call. For these same reasons, Respondent's testimony that he was not permitted to use the phone at any time is not credible. Respondent's father testified to Respondent's disheveled and beat-up appearance on Friday, May 2, but Respondent appears to have been capable of coherent conversation. Respondent did not visit a medical doctor until May 7, 1986, five days after his release, and then did so primarily for the purpose of obtaining a medical excuse in an attempt to be rehired.

   
   

9. Pobst was first placed in restraints at some time on Wednesday, April 30, and was in and out of restraints that day and the next, Thursday, May 1. An individual is placed in medically-approved restraints if he is viewed by the

   staff as a danger to others, or if the medical staff believes that he is at risk to commit suicide. An individual in restraints may not be allowed out of his cell on any given day and in this condition he is not permitted to use the telephone.

   
   

10. On Wednesday, April 30, Fisher advised Eugene Weber, Stores Manager, that Pobst had not reported for work or called in since their Monday conversation. On April 30, after telephoning at least four area hospitals, Fisher telephoned Hillsborough County Sheriff's Office Central Booking and was informed that Pobst was in jail for aggravated assault and that all inmates could make as many telephone calls as they wanted. Fisher reported this information to Weber who reported the same to his supervisor, Keith Simmons, Director of Procurement. 1/

    
    

11. On Thursday, May 1, Simmons telephoned Hillsborough County Jail Central to confirm Fisher's report that Pobst had access to a telephone and was told that all an inmate had to do was ask and that inmates are let out for just such purpose each day. In reliance on this information, Simmons contacted Roland Carrington, Director of Labor Management Relations, requested advice regarding the appropriate University response to Respondent's unauthorized absences, and was told it was appropriate to invoke the job abandonment rule.

    
    

12. On Friday, May 2, Respondent Pobst was not in restraints at any time during the day, and his condition and attitude were both noted as "good" on the police log completed at 10:00 a.m. and 4:30 p.m. Respondent did not ask to use a telephone on Friday, May 2 until at least 5:00 p.m., at which time he telephoned his mother in Indiana and then waited in the dayroom for release. When Respondent was allowed to use the telephone on May 2, 1986, he instructed his mother to have his father call his employer to notify him of his whereabouts. She in turn telephoned his father, Robert Pobst, in Tampa. Robert Pobst called for his son at 8:25 p.m. and effected release on bond at 9:40 p.m. on Friday, May 2. After being released from jail at 9:40 p.m. on Friday, May 2, 1986, both Respondent Pobst and his father attempted to reach Respondent's superiors at the University of South Florida. Respondent also attempted to reach Terry Fisher at home, but did not have enough information to get in touch with the right person.

    
    

13. On Sunday, May 4, Respondent reached Weber at home by telephone. Pobst explained the circumstances of his absence to Mr. Weber, and informed him he desired to report for work the following morning. Weber explained that Respondent's unauthorized absence was deemed as a resignation via job abandonment and that the paper work had already been processed. However, the true chronology is that upon Weber's notification Friday, May 2, that Pobst had again failed to appear or call that day, Simmons instructed his administrative assistant to prepare a letter of notification to Pobst. The letter provided that he was deemed to have resigned via abandonment. However, it was not until Monday, May 5, 1986, that Simmons actually mailed Pobst the notification of acceptance of his resignation via job abandonment by certified mail, return receipt requested.

    
    

14. On Monday, May 5, 1986, before receiving the official notification of abandonment, Pobst reported to the University one hour before the beginning of the work day. At that time Pobst's request for reconsideration of his resignation via abandonment was declined by Simmons in reliance on information from the Sheriff's Department which contradicted Respondent's assertion that he was unable to contact the University during the whole of April 29 through May 2 inclusive.

15. Terry Fisher had the authority to grant Pobst leave for the time he was incarcerated in the Hillsborough County Jail, and would have done so had Respondent given him a telephone call requesting such leave. On April 30, 1986, Terry Fisher, Eugene Weber, and Keith Simmons, all had knowledge that Respondent was incarcerated in the Hillsborough County Jail and had not appeared for work because he was physically unable to be present at work. Although each of Respondent's superiors knew that Respondent was incarcerated in the Hillsborough County Jail and was unable to be at work for that reason, none made any attempt to contact Respondent in order to gain direct information on his employment status or intentions.

    
    

16. It was not demonstrated that any University supervisor had any animosity toward Pobst, and it appears that it was not Pobst's being in jail but his failure to call in and their belief that he could have called in and did not do so that influenced Pobst's superiors to invoke the resignation via abandonment rule on May 2. Mr. Weber specifically chose to invoke the rule because he had made a negative assessment of Pobst's credibility from previous absence excuses and because he relied on the telephone representations by law enforcement personnel that Pobst could have called at any time. Additionally, Weber, who was Fisher's superior, took into consideration that late April and early May was an especially busy time of year for Central Receiving because it was the end of the fiscal year and all University departments were receiving large orders in an attempt to exhaust their old budgets before claiming new ones.

    
    

17. After May 5, Respondent made numerous efforts to regain his employment. He talked with Fisher, Weber, Simmons, and Roland Carrington in the University's Personnel Office. He requested his then-current position, OPS employment, and work he had performed prior to his transfer on April 18, 1986.

    
    

18. Following his termination from employment Respondent made an application for Unemployment Compensation. Because the University of South Florida initially contested his eligibility, Respondent was required to appeal the initial denial of unemployment compensation. Thereafter, Respondent and the University of South Florida were parties before an appeals referee, who conducted a de novo evidentiary hearing. The issue before the appeals referee was whether Respondent "voluntarily left employment without good cause." In determining this issue, the appeals referee applied a test of "good cause" associated with "misconduct" as those words of art are defined or contemplated in Chapter 443 Florida Statutes, determined that Respondent had committed no misconduct, and awarded unemployment compensation.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. The issues litigated before the Bureau of Unemployment Compensation are not precluded from litigation in this forum as the issues are not identical, and collateral estoppel does not apply where separate and distinct governmental units independently consider substantially similar facts for different reasons. The Unemployment Compensation Order is in no way binding in this proceeding, as the issue here is whether or not leave was authorized pursuant to leave

    provisions providing employer discretion, and not whether leave was justified by circumstances beyond the employee's control. Department of Health and Rehabilitative Services v. Vernon, 379 So.2d 683 (Fla. 1st DCA 1980). 3. Rule 22A-7.010(2)(a), Florida Administrative Code, provides:

    
    

    An employee who is absent without authorized leave of absence for three consecutive work days 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 Career Service 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.

    
    

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

    
    

    Any leave of absence with or without pay shall be approved prior to leave being taken, except in the case of an emergency where the employee must be absent prior to receiving approval from prior authority for the absence.

    1. When prior approval cannot be obtained by the employee due to such emergencies, the agency head shall take 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 three consecutive work days consider the employee to have abandoned the position and resigned from the Career Service.

    2. 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 three consecutive work days shall consider the employee to have abandoned the position and resigned from the Career Service.

       
       

22. The burden of requesting a leave of absence is on the employee, and granting of such leave is specifically a discretionary right of management. The case at bar is distinguishable from Penny v. Department of Insurance, DOAH Case No. 85-1530 and adopted by the Department of Insurance in DOA Case No. AB-85-

    6(1986), cited by Respondent, because in Penny the employer failed to act on a requested extension of leave and herein, Fisher and Pobst had a meeting of the minds that any extension of leave beyond April 28 would have to be requested. It was not. While the employer has discretion to forgive absence by retroactively authorizing leave upon learning an employee's explanation, such forgiveness is not mandatory.

    
    

23. Rule 22A-8.16(3), Florida Administrative Code, provides in relevant part:

    
    

    An employee may, upon request, be granted leave without pay ... provided the agency deems such leave to be justified and not detrimental to the operations of the agency.

    
    

24. The university had no duty to seek out Respondent or to determine his whereabouts in order to provide him with the opportunity to request leave or an extension of leave. Seeking to determine whether Respondent was ill or injured, and thereby determining he was incarcerated, does not thereby obligate Petitioner University to excuse Respondent's failure to request an extended leave of absence. In the instant situation, there is testimony of Mr. Fisher that he would have granted additional leave without pay had it been requested by Respondent by phone on April 29, but there is further testimony of Mr. Weber that partly due to the need for a reliable employee at their busiest time of the year he invoked the rule. All supervisors in the chain made their respective decisions based on reasonable reliance on representations that Pobst could have called had he wanted to do so and it appears from the facts as found that with a little thought, effort, and cooperation, Pobst could have arranged to call in and request additional leave. He did not do so and he must bear the consequences.

RECOMMENDATION

Upon consideration of the foregoing, it is,

RECOMMENDED that a Final Order be entered finding Respondent to have abandoned his position with the University of South Florida.

DONE and RECOMMENDED this 10th day of April, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1987.

ENDNOTE

/1. Although the information received by the chain of supervisors in this and subsequent phone calls to the jail was hearsay, it is related within these findings of fact for the purpose of showing these individuals' reliance upon that information, not for the truth thereof. As indicated in the findings of fact, there were times Respondent could call and times he could not.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2155

The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties.

Petitioner's proposed findings of Fact (FOF).

1. Covered in FOF 1.

2. Covered in FOF 2.

3. Except for the last sentence, this proposal is covered in FOF 4. The last sentence is rejected as stated as not supported by the evidence. Footnote

   2 is rejected as argument except as covered in FOF 8.

4. Covered in FOF 5.

5. Covered in FOF 6, except that footnote 3 is rejected as argument and as incorrect summarization of evidence.

6. Covered in FOF 7.

7. Covered in FOF 9.

8. Covered in FOF 10.

9. Covered in FOF 11.

10. Accepted but amplified for clarification and to comport with the record as covered in FOF 13.

11. Covered in FOF 12.

12. Covered in FOF 13.

13. Covered in FOF 14.

Respondent's proposed findings of Fact (FOF).

1. Covered in FOF 1 (cumulative of above).

2. Covered in FOF 1 (cumulative of above).

3. Rejected as stated because cumulative but covered within Recommended Order.

4. Sentences 1-2 are rejected as cumulative to facts as found in FOF 2. The remainder of the proposal is rejected as not supported by the evidence as covered in FOF 2. It is not credible as Pobst asserted that he, a probationary employee on leave without pay and in arrears on annual leave, could stay off work indefinitely as long as he called later that day and each day thereafter. The true understanding of Fisher and Pobst as reflected by their testimony is set out in FOF 2-3.

5. Covered in FOF 2.

6-9. Rejected as immaterial, and as subordinate and unnecessary except as covered in FOF 5.

10. Rejected as not supported by the evidence in this record and as subordinate and unnecessary to the facts as found except as covered in FOF 5.

11-12. Rejected as covered in FOF 8.

1. Rejected as it is immaterial what may be normal procedure as opposed to what occurred to Respondent.

2. Except as covered in FOF 5 rejected as not supported by the greater weight of the credible evidence.

25. Rejected as subordinate and unnecessary except as covered in FOF 8-9. 26-27. Rejected as subordinate and unnecessary in part and in part as

contrary to the greater weight of the credible evidence is set out in FOF 8-9.

1. Rejected as contrary to the greater weight of the credible evidence as covered in FOF 12. See also FOF 8 on credibility.

2. Rejected as conjectural, as not supported in the record, and as not dispositive of any issue at bar.

3. Covered in FOF 4 and 15.

4. Covered in FOF 3 and 15.

5. Covered in FOF 10 and 15.

6. Rejected as conclusionary argument of counsel. See FOF 15-16.

7. Covered in FOF 15.

8. Covered in FOF 12.

9. Covered in FOF 12.

10. Covered in FOF 13.

11. Covered in FOF 14.

12. Rejected as stated as not supported by the greater weight of the credible evidence as covered in FOF 13.

13. Covered in FOF 17.

14. Except as covered in FOF 18, the proposal as stated is rejected as not supported by Respondent's Exhibit 4 in its entirety. Exhibit 4 supports FOF 18 as stated.

COPIES FURNISHED:

Gilda Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399

Augustus D. Aikens, Esquire Department of Administration

520 Carlton Building Tallahassee, Florida 32399

Carla Jimenez, Esquire Senior Counsel for Faculty and Labor Relations University of South Florida 4202 East Fowler Avenue

ADM 254

Tampa, Florida 33621

Jerry G. Traynham, Esquire Patterson and Traynham 1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32315

Docket for Case No: 86-002155

Orders for Case No: 86-002155