STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREY C. ENGLISH, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1931

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties in this case by the undersigned on June 16, 1987, a hearing was held in this case in Okeechobee, Florida on July 28, 1987. The issue for consideration was whether Petitioner abandoned his position with the Department of Transportation and resigned from the Career Service by virtue of his unauthorized absence from duty in February, 1987.

APPEARANCES

Petitioner: Isidro Garcia, Esquire

Florida Rural Legal Services, Inc.

572 S.W. 2nd Street

Belle Glade, Florida 33430

Respondent: Charles G. Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

BACKGROUND INFORMATION

By certified letter dated March 10, 1987, the Department of Transportation, (DOT), notified the Petitioner that he was terminated from Employment with the Department effective February 19, 1987 for abandonment of his position.

Thereafter, on April 3, 1987, Petitioner's counsel advised the State Personnel Director by letter that Petitioner was requesting a review of the decision to terminate him and on April 30, 1987, the Secretary of the Department of Administration accepted the request for review and elected to refer it to the Division of Administrative Hearings for hearing. That same day, the Assistant General Counsel for the Department of Administration forwarded the file to the Director of the Division of Administrative Hearings for appointment of a Hearing Officer and on June 16, 1987, the undersigned set the case for hearing on the date held.

At the hearings Respondent presented the testimony of Elizabeth R. Chapman, a Highway Maintenance Technician, (HMT) I; Michelle L. King, a HMT Supervisor; Henry Lanier, a HMT Supervisor; and Raymond L. Roberts, Assistant Maintenance Engineer in the Ft. Pierce office of DOT. Petitioner testified in his own

behalf and presented the testimony of Terry L. Branchaud. Respondent introduced Respondent's Exhibits 1 through 8 and 10. Respondent also offered Respondent's Exhibits 9 and 11 which were not received into evidence. Petitioner introduced Petitioner's Exhibits 1 through 4. Exhibits 1 through 3 were accepted into evidence and Exhibit 4, a Notice of Decision of an appeals referee of the Department of Labor and Employment Security was not admitted at the hearing.

Ruling on the admissibility of that document was withheld. Having considered the exhibit, it is not admitted.

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

FINDINGS OF FACT

1. Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew.

   
   

2. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful.

   
   

3. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later.

   
   

4. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987.

   
   

5. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding

   days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either.

   
   

6. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question.

   
   

7. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman.

   
   

8. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused.

   
   

9. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested.

10. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Rule 22A-7.010, F.A.C. provides for the separation from employment of those state employees who, inter alia, have abandoned their position with the state. This provision, at subparagraph (2), 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. 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.

       
       

    2. Each employee separated under conditions of abandonment of position shall be notified in writing by the agency head or the agency head's designee. Notification shall be given by delivering a copy to the employee or by mailing a copy by certified mail, return

    receipt requested. Such notification shall inform the employee of the rights to petition for review of the agency's action as provided in this rule.

    
    

13. Petitioner here petitioned the department for a "review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position."

    
    

14. The evidence clearly shows that Petitioner had been employed by the state for several years and was familiar with the procedures for requesting authorized leave. There is some question about the circumstances leading up to his departure but this had been resolved counter to Petitioner's interests. It is clear that he received a substantial check from the state just before he left work. It is also clear that he absented himself from his job for an extended period. Even though neither Ms. Chapman nor anyone else that she knew of made any attempt to contact Petitioner during the period of his absence to tell him of the difficulty his continued absence was causing him, the evidence clearly establishes that he was aware of the procedures for obtaining leave and he failed to properly use them. It is unreasonable to assume that he would be permitted to remain absent for an extended period without making some formal application for approval of that absence.

    
    

15. The letter notifying Petitioner of his potential termination was not received at his house until after the deadline set therein for return to work. It is an inartfully drawn letter and would appear to excuse Petitioner's prior absence if he were to return to work by the date stipulated therein. This clearly was not the intent of the department's representative and does not override the fact that Petitioner was absent without authority for almost two weeks prior to its being sent. Since, however, it was not received by Petitioner until March 11, 1987, his termination cannot be effective until that date.

    
    

16. It is, therefore, concluded that Petitioner abandoned his position with the Department of Transportation by being absent without authority for more than three consecutive work days. However, termination without proper notice was ineffective until the letter of notification was received or returned to DOT.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987.

RECOMMENDED this 18th day of September, 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 18th day of September, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By the Petitioner

1-2. Accepted and incorporated in Findings of Fact 1.

1. Accepted and incorporated in Findings of Fact 9.

2. Accepted and incorporated in Findings of Fact 9.

3. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact.

4. Rejected as contrary to the weight of the evidence.

5. Accepted.

6. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation.

9-12. Irrelevant.

13-17. Rejected as not Finding of Fact.

By the Respondent

1. Accepted.

2. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9.

1. Accepted and incorporated in Findings of Fact 10.

2. Accepted and incorporated in Findings of Fact 10.

3. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted.

10-13. Irrelevant.

1. Rejected as not a Finding of Fact.

2. Accepted.

COPIES FURNISHED:

Isidro Garcia, Esquire

Florida Rural Legal Services, Inc.

572 S.W. 2nd Street

Belle Glade, Florida 33430

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 87-001931

Orders for Case No: 87-001931