STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALBERT T. SMITH, )
)
Petitioner, )
)
vs. ) CASE NO. 87-0450
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 27, 1987, in Blountstown, Florida.
APPEARANCES
For Petitioner: Albert T. Smith, Pro Se
Route 1, Box 135, B 69A
Blountstown, Florida 32424
For Respondent: Vernon L. Whittier, Jr., Esquire
Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0450 PROCEDURAL STATEMENT
By certified letter from Mr. Allen Potter, Deputy Assistant Secretary of the Respondent, the Department of Transportation, the Petitioner, Albert T. Smith, was informed that he had been removed from his position with the Respondent effective 5:00 p.m., Thursday, January 8, 1987. By letter dated January 22, 1987, the Petitioner requested review of the facts of his case by the Secretary of the Department of Administration.
The Department of Administration forwarded the request from the Petitioner to the Division of Administrative Hearings by Order dated February 4, 1987, and elected to request assignment of a Hearing Officer to conduct further proceedings.
At the formal hearing of this case the Petitioner presented the testimony of Arthur Jackson and testified on his own behalf. Petitioners exhibit 1 was accepted into evidence.
The Respondent presented the testimony of Gustave Goodwin, Lloyd Blackburn and Martha Riggs. Respondent's exhibits 1-6 were accepted into evidence.
The Respondent timely filed a proposed recommended order. The Petitioner filed a letter after the conclusion of the formal hearing. The Respondent's
proposed recommended order and the Petitioner's letter contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
ISSUE
Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service pursuant to the personnel rules of the Career Service System?
FINDINGS OF FACT
The Petitioner was an employee of the Respondent for more than five years. At all times relevant hereto, the Petitioner was employed by the Respondent.
During the month of December, 1986, and the portion of January, 1987, prior to the date the Petitioner was removed from his position, the Petitioner was assigned to the Blountstown, Florida, road maintenance office.
The Petitioner's immediate supervisor was Mr. Gustavev Goodwin. Mr. Goodwin was an HMT-3 with the Respondent and supervised a maintenance crew of three men, including the Petitioner. Mr. Goodwin was the Petitioner's immediate supervisor.
Mr. Lloyd Blackburn, a Highway Maintenance Supervisor with the Respondent, was Mr. Goodwin's immediate supervisor. Mr. Blackburn supervises all crews operating out of the Blountstown office.
The Petitioner and his crew worked a 10-hour day, 4 days a week.
Mr. Goodwin prepares a weekly crew report on a daily basis. Mr. Goodwin records the hours a crew member worked or, if a crew member was not present, Mr. Goodwin notes the absence and the reason for the absence.
Mr. Blackburn transfers the information recorded on the weekly crew reports to timesheets which are used for payroll purposes.
If approval of a request for leave is required, employees are required to report to their crew supervisor or Mr. Blackburn. The Petitioner would have been required to obtain approval of leave from Mr. Goodwin or Mr. Blackburn, if prior approval had been required.
In cases of sick leave, employees were expected to call by telephone on the day of the illness or injury and inform Mr. Blackburn. Mr. Blackburn was at the office each work day in the morning before the crews completed fueling their trucks and departed for the day. Mr. Blackburn was then out of the office during most of the remainder of the day.
During the last week of December, 1986, Mr. Goodwin, the Petitioner and the other members of Mr. Goodwin's crew were "bull skating" (joking and talking). The Petitioner told Mr. Goodwin in response to some comment, probably pertaining to the work that would be done the first week of January, 1987, that "I won't be here next week anyway. I be in the hospital." Although Mr. Goodwin
did not remember the Petitioner having made these comments, the Petitioner and one of the crew members, Mr. Arthur Jackson, both testified that the comments were made.
Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that he could be absent from work during the first week of January, 1987.
The Petitioner was absent from work during the first week of January, 1987 -- January 5, 6, 7 and 8, 1987.
Neither Mr. Goodwin nor Mr. Blackburn were contacted on January 5-8, 1987, by the Petitioner or anyone on behalf of the Petitioner, about the Petitioner's absence.
Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that his absence on January 5-8, 1937, was approved.
The Petitioner had obtained approval of annual leave prior to the period at issue in this case.
The Petitioner had planned to go to the hospital on January 5, 1987, because of problems he has had with his legs, and to remain in the hospital for the remainder of the week. Because of the problems with his legs and his automobile, the Petitioner did not go to the hospital or see a doctor on January 5, 1987.
On January 8, 1987, the Petitioner had a friend drive him to Panama City, Florida, where he remained under the care of Dr. Ernest G. Haslam, M.D., in the hospital, until January 12, 1987.
Although the Petitioner does not have a telephone at his residence, Mr. Goodwin or Mr. Blackburn could have been contacted by Petitioner's wife, who works at Hardees, or by a friend.
The Petitioner acknowledged receipt on April 14, 1983, of the Florida Department of Transportation Employee Handbook and his responsibility to review the handbook in detail and to request clarification, if necessary.
On page 43 of the handbook it is provided that "[a]fter an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from Career Service ..." On page 22 of the handbook it is provided that "[i]f a medical appointment is necessary during work hours, you should obtain `approval, in advance, to use your earned sick leave."
By certified letter from Allen Potter, Deputy Assistant Secretary of the Department, dated January 8, 1976, the Petitioner was informed that he was deemed to have abandoned his position with the Respondent and to have resigned from the Career Service because of his absence from work during the first week of January, 1987.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
The Respondent relies primarily upon Rule 22A-7.010(2)(a), Florida Administrative Code, to support its dismissal of the Petitioner. Rule 22A- 7.010(2)(a), Florida Administrative Code, provides, in pertinent part:
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 portion of the Rule creates a presumption that an employee who is absent from his or her job for three days has given up his or her job. The presumption is a rebuttable one. Clara M. Penney v. Department of Insurance, Case No 85-1530 (DOA January 31, 1986). The Rule is intended to strike a "fair balance" between "swift replacement of ineffective public employees," and "job security and retention." Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982).
There is no doubt that the Petitioner was absent from his job with the Respondent for three consecutive workdays. At issue is the question of whether that absence was an "authorized leave of absence?" In support of its argument that the Petitioner's absence was unauthorized, the Respondent points to the fact that no approval, written or verbal, of the Petitioner's absence was given by Mr. Goodwin or Mr. Blackburn prior to January 5, 1987, or during the period of the Petitioner's absence. The Respondent also points to the fact that, if the Petitioner's absence was due to an emergency, the Petitioner failed to contact the Respondent during his absence to notify the Respondent.
The manner in which employees may be absent with leave is governed by Chapter 22A-8, Florida Administrative Code. In particular, Rule 22A-8.002(5), Florida Administrative Code, provides, in pertinent part:
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.
When prior approval cannot be obtained by the employee due to such emergencies, the agency head shall take one of the following actions:
Grant the employee leave with pay
Place the employee on leave without pay for the absence, or,
If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.
Pursuant to this Rule employees must generally obtain prior approval for any leave of absence unless the absence is caused by an emergency.
In addition to the general provision of Rule 22A-8.002(5), Florida Administrative Code, Rule 22A-8.011(2), Florida Administrative Code, governs the use of sick leave. This Rule provides, in pertinent part:
Use of sick leave shall not be authorized prior to the time it is earned and shall only be used with the
approval of the proper authority within the agency...
Sick leave shall be authorized for an employee's personal illness or injury:
Beginning on the first day of absence only for the following purposes, as verified in writing by medical certification from the attending physician:
Treatment of a diagnosed condition requiring continuing and intermittent therapy or medical treatment;
Hospitalization either as an in-patient or out-patient;
f. Personal appointments with a doctor, dentist, or other recognized practitioner when it is not possible to arrange such appointments for off-duty hours.
Beginning on the third consecutive day of absence for the purposes listed below. Any period of leave shall be counted as the first day of an absence in determining the consecutive days of such absence:
Other personal illness or a non-job connected injury;
Notification of absence due to illness, injury ... shall be given to the
appropriate supervisor by the employee or the employee's representative as soon as possible on the first day of absence.
Upon request an employee shall be allowed to use accrued sick leave credits as provided in this section:
Prior to authorizing an employee to use sick leave credits, the agency head shall require the employee to certify that the absence was for reasons which are justified and provided in Section 22A-8.011(2)(b) and
After 3 workdays of absence in any 30 calendar day period, the agency head may require a medical certification of the employee's absence(s) due to illness or injury before authorizing any additional use of leave credits by the employee.
4. After 10 consecutive days of absence, the employer shall submit to the agency head a medical certification from the attending physician before any additional use of sick leave credits can be authorized for the employee ...
Rule 22A-8011(2)(a), Florida Administrative Code, requires that an employee obtain approval for the use of sick leave but it does not specifically provide that prior approval must be obtained. When read in conjunction with Rule 22A- 8.002(5), Florida Administrative Code, however, prior approval is
required except where an employee is absent due to illness or injury. Additionally, in order to be entitled to use accrued sick leave for other than an illness or injury, an employee is required to provide verification in writing by medical certification from the attending physician. Rule 22A- 8.011(2)(b), Florida Administrative Code. Therefore, in order for an employee to use accrued sick leave for hospitalization or an appointment with a doctor for other than illness or injury for which prior approval cannot be obtained by the employee, the employee must obtain prior approval and provide verification in writing by medical certification from the attending physician. If an employee obtains prior approval but does not provide verification from an attending physician, the employee is treated as having used accrued annual leave.
If an employee is absent on account of illness or injury, approval of the use of accrued sick leave is required, but prior approval is not required in order for the employee to be entitled to use accrued sick leave. In the case of a genuine illness or injury, use of accrued sick leave is generally a matter of right, if certain other conditions are met. An illness or injury is considered an emergency for which prior approval is not required if such approval cannot be obtained by an employee due to the unexpectedness of the illness or injury.
In order for an employee to be entitled to use accrued sick leave in the case of an illness or injury, certain conditions must be met. The employee must provide verification in writing by medical certification from the attending physician in order to be entitled to use accrued sick leave for the first two days of absence. Rule 22A-8.O11(2)(b)1, Florida Administrative Code. If medical certification is not provided, however, for the first two days of absence due to illness or injury, the employee is treated as having used annual leave for the first two days. After the first two days of absence due to illness or non-job connected injury, use of sick leave is a matter of right if the employee certifies that the absence was for illness or injury. No verification in writing by medical certification from an attending physician is required. Rule 22A-8.011(2)(b)2, Florida Administrative Code. After three days of absence in any 30 calendar day period, the agency head may, and, if the absence exceeds ten consecutive days, the agency head must, require medical certification if an absence is due to illness or injury before authorizing any use of additional sick leave credits. Rule 22A-B.O11 (2)(e), Florida Administrative Code.
The only other condition which an employee must satisfy in order to be entitled to use accrued sick leave for an illness or injury is that the employee or his or her representative notify his or her supervisor that he or she will be absent due to illness or injury as soon as possible on the first day of absence. Rule 22A-B.011(2)(f), Florida Administrative Code. This requirement supports the conclusion that in the case of absence due to illness or injury an employee is treated as having been absent due to an emergency for which prior approval is not required; if prior approval was necessary under such circumstances there would be no need to also require notification.
In this case, the Petitioner had planned to be absent and to take sick leave for an appointment with a doctor and hospitalization. If the Petitioner had in fact kept that appointment, prior approval would have been necessary.
The facts reveal that the Petitioner was not absent, however, on January 5, 6, or 7, 1987, due to his appointment with a doctor. Instead the Petitioner indicated that he was too ill to keep his appointment until January
8, 1987. Therefore, prior approval from the Respondent was not required in order for the Petitioner to be entitled to use accrued sick leave for his absence, if the conditions for the use of sick leave provided in Rule 22A- 8.011(2), Florida Administrative Code, have been met.
Because the Petitioner was absent due to an illness or injury, he was required to notify his employer of his absence. The Petitioner did not so notify the Respondent that he was ill on the date of his absence or at any time during the three-day period in question. The Petitioner had, however, already told his supervisor, Mr. Goodwin, that he would be absent during the period in question. That Mr. Goodwin did not hear the Petitioner so inform him is understandable in light of the circumstances under which the Petitioner told him. But the fact is the Petitioner did so inform him. In light of the fact that the Petitioner had already told his employer that he would be absent during the period in question, the notification requirement of Rule 22A-8.011(2)(f), Florida Administrative Code, was met.
In order for the Petitioner to be entitled to use sick leave for the first two days of his absence, the Petitioner was also required to provide verification in writing by medical certification from an attending physician that his absence was due to illness or injury. The Petitioner did not provide such verification. Additionally, the Petitioner was required to certify that his absence for the entire period in question was due to illness or injury. The Petitioner testified under oath that he was absent during the first three days of his absence due to his medical problems with his legs. Therefore, the Petitioner should be treated as having been absent during the three day period at issue in this case due to illness or injury. He should be treated as having taken two days of annual leave for the first two days of his absence and one day of sick leave for the third day of his absence. Additionally, since the Petitioner was absent from his job for more than three workdays in a 30 day calendar period, the Respondent may require a medical certification of the Petitioner's absence for any additional days of absence in excess of the first three days. Such certification was available and presented into evidence as Petitioner's exhibit
During the final hearing of this case, there was testimony that employees of the Respondent are required to notify their supervisor each day of their absence due to illness or injury. This testimony is not consistent with the requirement of Rule 22A-8.O11(2)(f), Florida Administrative Code. All that is required is notification on the first day of the absence. The Respondent has not cited any provision of law which requires State employees to notify their employers that they will be absent each day of an absence due to illness or injury beyond the first day of the illness or injury. The burden is placed on the employer to ask for medical certification if the absence lasts for more than three days and the employer desires such certification, or, if the absence lasts for more than ten days, the employer must require such certification.
The abandonment rule is intended to establish a point in time when an employer can assume that an employee is not returning to his or her job. Cook
v. Division of Personnel, Department of Administration, 356 So.2d at 358. Where an employee has notified his or her employer that he or she will be absent on sick leave, such as the Petitioner did in this case, there is no need for the employer to make such an assumption. In balancing the need of the Respondent to replace ineffective employees with the Petitioner's right to job security and retention, the circumstances of this case weigh in favor of the Petitioner's rights.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration rule that the Petitioner,
Albert T. Smith, has not abandoned his position with the Respondent, the Department of Transportation, and has not resigned from the Career Service.
DONE and ENTERED this 12th day of May, 1987, in Tallahassee, Florida.
LARRY J. SARTIN
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 12th day of May, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0450
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s), if any, in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RD ."
Petitioner's Proposed Findings of Fact
The Petitioner has filed a letter dated April 10, 1987. The only proposed finding of fact contained in this letter concerns the question of whether the Petitioner told his supervisor, Mr. Goodwin, that he would not be at work during the period of time at issue in this case. The proposed finding of fact has been accepted in RD 10.
Respondent's Proposed Findings of Fact
Proposed Finding RD Number of Acceptance of Fact Number or Reason for Rejection
1 | RD | 1-4 and 8. |
2 | RD | 5-7 and 9. |
3 | RD | 10-11. |
4 | RD | 11 and 13. The evidence did not |
prove that the Petitioner had obtained prior approval for sick leave subsequent to the period of time involved in this case. The evidence only proved that the Petitioner had on other occasions received prior approval of annual leave.
5 RD 19-20.
RD 16 and 18. The evidence does not prove that the Petitioner got into a car and drove to town.
RD 21. The Petitioner was not, however, "absent from his position without authorized leave ..."
COPIES FURNISHED:
Adis Vila, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Kay N. Henderson, P.E., Secretary Department of Transportation Hayden Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450 ATTN: Eleanor F. Turner, MS 58
Vernon L. Whittier, Jr., Esquire Department of Transportation
605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0450
Mr. Albert T. Smith Route 1, Box 135, B 69A
Blountstown, Florida 32424
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALBERT T. SMITH,
Petitioner,
vs. DOA Case No. AB-87-05
DOAH Case No. 87-0450
DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
This matter is before the Department of Administration for entry of a final order.
The Recommended Order herein was entered on May 12, 1987, by Larry J. Sartin, Hearing Officer. The record in this case, including the exhibits introduced into evidence at the hearing and transcript of the proceedings, has been reviewed. Respondent has filed exceptions to the recommended order, and rulings on the exceptions are made in Appendix A, attached here to. Having considered all matters of record in this cause, it is therefore ORDERED:
FINDINGS OF FACT
The Findings of Fact contained in the Recommended Order (Appendix "B", attached hereto) are adopted by the Department of Administration.
CONCLUSIONS OF LAW
The Conclusions of Law contained in the Recommended Order are rejected, and the Department of Administration makes the following conclusions of law:
Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part:
An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the pos- ition and to have resigned from the Career Service...
It is established that Petitioner was absent from his job for three consecutive workdays. At issue is the question of whether that absence was an authorized leave of absence. The manner in which employees may be absent with leave is governed by Chapter 22A-8, Florida Administrative Code. In particular, Rule 22A-8.002(5), Florida Administrative Code, provides:
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.
When prior approval cannot be obtained by the employee due to such emergencies,
the agency head shall take one of the follow- ing actions:
Grant the employee leave with pay. ,
Place the employee on leave without pay for the absence, or,
If the absence is for 3 consecutive work- days, consider the employee to have abandoned the position and resigned from the Career Service.
Pursuant to this Rule employees must obtain prior approval for any leave of absence unless the absence is caused by an emergency.
Petitioner's statement to his supervisor while "bull skating" was not a request for leave, and no approval for leave was given. Mr. Goodwin did not acknowledge or respond to Petitioner's statement, and it certainly cannot be inferred that he approved Petitioner's planned leave.
If Petitioner had gone into the hospital on January 5, as he had intended, prior approval of the planned absence would have been required by Rule 22A- 8.002(5), F.A.C. Petitioner was ill on January 5, 6 and 7, however, and was unable to go to the hospital until January 8.
Rule 22A-8.002(5 ) contemplates circumstances when prior approval of leave cannot be obtained due to an emergency. Unanticipated illness or injury may constitute such an emergency. It was not necessary, therefore, for Petitioner to obtain prior approval of his leave due to his illness.
Rule 22A-8.011(2)(d) provides that:
(d) Notification of absence due to illness, injury, or exposure to a contagious disease shall be given to the appropriate supervisor by the employee or the employee's represen- tative as soon as possible on the first day of absence.
Therefore, Petitioner was required to give his supervisor notice of his absence as soon as possible on his first day of illness. Petitioner failed to give his supervisor notice of his absence due to illness on any of his three days of illness or on his fourth day of absence when he went to a doctor in Panama City.
Petitioner's statement to his supervisor regarding his planned hospitalization did not constitute notification of his unplanned illness. It is illogical to assert that notice of an unanticipated illness can be given prior to the occurrence of the illness. Further, in the context of the "bull skating" session, Petitioner's statement was not notification. Given the circumstances, it was likely that Mr. Goodwin would fail to take notice of the statement or would disregard it as a joke. As the hearing officer found, it is understandable Mr. Goodwin did not hear Petitioner in light of the circumstances under which Petitioner told him. While the rule does not prescribe the manner in which notification is to be given, the term "notification" presupposes that it will be made in a manner which can be reasonably understood by the supervisor to be a notice.
When Petitioner became aware that he would not be able to work due to illness, he was required to notify his supervisor as soon as possible. The hearing officer found that, although Petitioner had no telephone, he could have contacted his supervisor through his wife, who works at Hardee's. Inasmuch as
Petitioner had the ability to notify his supervisor of his absence and failed to do so, his absence was unauthorized. The determination by the Department of Transportation that Petitioner abandoned his position should be sustained.
ORDER
The action of the Department of Transportation in deeming Albert T. Smith to have abandoned his position of employment and to have resigned from the Career Service is SUSTAINED.
This order constitutes final agency action. Judicial review of this proceeding may be institutcd by filing a Notice of Appeal in the First District Court of Appeal pursuant to Section 120.68, Florida Statutes. Such notice must be filed with the District Court of Appeal within thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration, as indicated in the Certificate of Clerk below, or further review of this action will be barred.
DONE AND ORDERED this 29th day of June, 1987, in Tallahassee, Florida.
ADIS M. VILA, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32309-1550 (904) 488-4116
Certificate of Clerk:
Filed in the official records of the Department of Administration this 29th day of June,
1987.
Clerk
COPIES FURNISHED:
Larry J. Sartin, Hearing Officer Division of Administrative liearings
101 Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Mr. Albert T. Smith Route 1, Box 135, B 69A
Blountstown, Florida 32424
Vernon L. Whittier, Jr., Esquire Department of Transportation
605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0450
Pamela Miles
Assistant General Counsel Department of Administration
438 Carlton Building Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| May 12, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 29, 1987 | Agency Final Order | |
| May 12, 1987 | Recommended Order | Petitioner did not abandon career service job by three-day absence. |
JERRY M. COOPER vs DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, 87-000450 (1987)
ALFRED GREENBERG vs. DIVISION OF PARI-MUTUEL WAGERING, 87-000450 (1987)
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES vs. ALDRIDGE MCMAHAN, 87-000450 (1987)
LAWRENCE JAMES, JR. vs ALACHUA COUNTY DEPARTMENT OF CRIMINAL JUSTICE SERVICE, 87-000450 (1987)
