STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4474

)

DENNIS SCOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Order Granting Continuance issued by Hearing Officer Linda M. Rigot on June 11, 1987, a hearing in this case was held before Arnold

1. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Tallahassee, Florida on September 9, 1987. The issue for consideration was whether Respondent had abandoned his position of employment with the Department of Transportation.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles Gardner, Esquire

   Department of Transportation Haydon Burns Building

   605 Suwannee Street

   Tallahassee, Florida 32399-0450

   
   

   For Respondent: Ben R. Patterson, Esquire

   Patterson & Traynham 1215 Thomasville Road Post Office Box 4289

   Tallahassee, Florida 32315 BACKGROUND INFORMATION

   By letter dated October 14, 1986, the Petitioner, Department of Transportation, (DOT), notified Respondent, Dennis Scott, (Scott), that he was deemed to have abandoned his position as a toll collector supervisor at the BeeLine East toll facility in Orlando, Florida because of his unauthorized absence from his place of duty on October 11, 12, and 13, 1986. On October 21, 1986, by certified letter, Respondent requested a formal administrative hearing and the file was forwarded to the Department of Administration.

   
   

   On November 12, 1986, the then Secretary of the Department of Administration entered an order accepting the petition and assigning the matter to the Division of Administrative Hearings, (DOAH), and on November 10, 1986, the file was forwarded to DOAH for appointment of a Hearing Officer. On February 16, 1987, Linda Rigot, a Hearing Officer, issued a Notice Of Hearing in which she set the case for hearing on April 24, 1987, in Tallahassee. On April

   22, 1987, Ms. Rigot, based on Respondent's Motion for Continuance, cancelled the April 24th hearing and rescheduled it for June 9, 1987, again in Tallahassee.

   On that date, Respondent's counsel again moved for a continuance which was granted and the hearing was rescheduled for September 9, at which time it was held by the undersigned to whom the case had been transferred in the interim.

   
   

   At the hearing, Petitioner presented the testimony of Kenneth E. Guthrie, Regional Toll Manager for the Orlando Region of the Florida Bureau of Tolls; and Pansy M. Yates, Facilities Supervisor II at Petitioner's BeeLine East Toll facility. Petitioner also offered Petitioner's Exhibits 1 through 9 of which Exhibits 1-5 and 9 were admitted. Petitioner's Exhibits 6-8 were not admitted. Respondent testified in his own behalf and presented the testimony of his wife, Vergie Scott.

   
   

   Subsequent to the hearing, Respondent submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent herein, Dennis W. Scott, worked for the Department of Transportation, Bureau of Tolls, from October, 1982, to October, 1986 in various positions at several different toll facilities in the Orlando area.

      
      

   2. At the time in issue, Respondent was working at the BeeLine East toll facility as a toll collector supervisor. His regular duties included supervision of other collectors and paperwork related thereto.

      
      

   3. Respondent had been working at that facility for some time and had had, according to his supervisor, Pam Yates, a repeated absenteeism problem. Admittedly, Respondent was, at the time, a cocaine user and missed work periodically because of both his use of cocaine and the rehabilitation treatment he was receiving. When he had to miss work, he would ordinarily take such leave as he had accrued. Ms. Yates felt that he constituted an absenteeism problem, however, and had reached the conclusion that she could not rely on him to be present at any given time. The duty schedules that she prepared were often missed by Respondent and it would be necessary for her to call in part time help to fill in. She could not rely on him.

      
      

   4. Respondent was scheduled to work Saturday through Monday, October 11- 13, 1986. He did not come to work on those days and, since he had neither sick nor annual leave accrued to cover him, was placed in a leave without pay status since his absence was unauthorized.

      
      

   5. There is some question as to whether he was told not to report to work on those days. He and his wife both contend that during the period of October

      7-11, 1986, Mrs. Yates called his home several times regarding his schedule. On October 10, 1986, according to Mrs. Scott, Mrs. Yates advised her to tell Respondent not to come in for his regularly scheduled work on October 11, 12, and 13, 1986. According to Mrs. Scott, Mrs. Yates indicated that as far as she was concerned, Respondent would be fired but that they had to wait for Mr.

      Guthrie, the Regional Manager, to come back from vacation to take appropriate action.

      
      

   6. On Monday, October 13, 1986, Scott contacted Mr. Guthrie by phone and asked him if a decision had been made to relieve him from duty. At this point, according to Mr. Scott, Mr. Guthrie indicated that a decision had been made to terminate him and that he would deliver a letter to that effect to Respondent

      that afternoon. Though this conversation allegedly took place on October 13, the letter was not dated until October 14, and was not delivered to Respondent until October 17, 1986.

      
      

   7. Respondent contends that at no time did he intend to resign or abandon his position nor did he ever indicate he did to any of his various supervisors. He contends he did not go to work on October 11-13 because of the phone call received from Mrs. Yates telling him not to come in. At all times during this period, Respondent contends, he was willing and ready to come to work and told Mr. Guthrie this when he spoke with him on the phone.

      
      

   8. Mrs. Yates tells a somewhat different story regarding the days leading up to the time in issue. Respondent took 2 hours of sick leave on October 7, as well as 6 hours of annual leave. On Wednesday, October 8, she tried to reach Respondent because he had not shown up for work the previous day but calls' to his home were unanswered. He did not report in for duty that day, either, though he called Mrs. Yates at home that night. During that call, he told her that his personal possessions were being repossessed.

      
      

   9. Respondent was not scheduled to work on Thursday or Friday, October 9 or 10. When Mrs. Yates asked him if he was coming in to work on Saturday, October 11, he hemmed and hawed and finally said, "I guess." At that point she told him she needed to know if he was coming in or not, but he could not definitely say at that time. She did not call him at any time on Thursday or Friday, October 9 or 10, to see if he was coming in on the 11th.

      
      

   10. Mrs. Yates admits to talking with Respondent's wife on Thursday, October 8th, about some credit cards but not about work. It was during this period that Mr. Berry, Chief of the Bureau of Tolls, called her at home to talk about Respondent's attendance record. He advised Mrs. Yates to go to work on Saturday, October 11, and if Respondent showed up, to send him home. However, Respondent did not come in on October 11, nor did he call to request time off.

       
       

   11. When Mr. Guthrie, who had been on leave during this period, came back to work, Mrs. Yates discussed Respondent's work record with him but they did not discuss taking action to terminate his employment. They had previously discussed Respondent's lack of reliability, but at no time did she ever indicate that she wanted him fired. At all times when Respondent was absent because of or in treatment for his substance abuse, he was placed on leave for the period of absence.

       
       

   12. Had Mr. Scott shown up for work on October 11, 1986, he probably would have been fired, but he did not show up. Respondent's absence was not the result of a direction or suggestion from Mrs. Yates but of his own volition and, based on the evidence available, the absence on October 11, 12, and 13 was unauthorized.

       
       

   13. Respondent is now employed elsewhere though he was unemployed for several weeks after he was notified of his abandonment of position.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

       
       

   15. Rule 22A-14.001(1), F.A.C. defines abandonment of position as:

The unauthorized absence by an employee from the employee's position for three consecutive work days.

16. Rule 22A-7.010(2)(a), F.A.C. 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...

1. Here the evidence clearly shows that the Respondent was absent from his place of duty on October 11, 12, and 13, 1986 and that he was not authorized to be absent at the time. This constitutes a three day unauthorized absence and is sufficient to meet the terms of the statute and constitute abandonment of position.

   
   

2. Mr. Scott had been employed by DOT for several years and was familiar with the procedures for requesting authorized leave. There was some question as to whether he was directed to remain absent from his place of duty on the days in question but this issue was resolved against him. Respondent attempted to indicate that he was, in reality, terminated for cause and that the termination action was disguised as an abandonment of position since appropriate procedures were not followed to effectively accomplish a termination for cause action. Though the evidence indicates sufficient provocation by Mr. Scott to justify a disciplinary discharge if his supervisors had so desired, there is no indication this action was taken or planned.

   
   

3. The evidence is clear that Respondent had been absent frequently but that he knew the requirements for obtaining leave. It is, therefore, concluded that, notwithstanding his current protestations that he did not intend to abandon his position, Respondent did just that by being absent without authority for three consecutive work days.

RECOMMENDATION

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

RECOMMENDED that the Respondent, Dennis W. Scott, be deemed to have abandoned his position with the Department of Transportation.

RECOMMENDED this 7th day of October, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 7th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4474

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

For the Petitioner None For the Respondent

1. Irrelevant.

2. Accepted.

3. Irrelevant.

COPIES FURNISHED:

Charles Gardner, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben R. Patterson, Esquire Patterson & Traynham

1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32315

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Pamela Miles, Esquire Assistant General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Kaye N. Henderson, P. E., Secretary Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 86-004474

Orders for Case No: 86-004474