vs. ) CASE NO. 87-3104
MICHAEL J. RODGERS, )
Respondent. )
This matter came on for hearing in Perry, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on January 22, 1988. In keeping with counsel's agreement at hearing, the parties were given 30 days from the date of the court reporter's certificate, or until March 16, 1988, in which to file proposed recommended orders, but neither party did so.
At hearing, the parties were represented by counsel: For Petitioner: Charles G. Gardner, Esquire
Haydon Burns Building, M.S. 58
For Respondent: Aaron A. Green, Esquire
After petitioner Department of Transportation (DOT) advised respondent Rodgers, by letter dated June 26, 1987, that he was "hereby removed from [his] position and the Department of Transportation payroll effective 4:30 p.m., Thursday, June 25, 1987," Mr. Rodgers wrote the Department of Administration a letter, which the Department of Administration treated as a petition under Rule 22A-7.010(2), Florida Administrative Code, and referred for hearing to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987).
Whether Michael J. Rodgers abandoned his position and resigned from the career service within the contemplation of Rule 22A-7.010(2), Florida Administrative Code?
V. G. "Jerry" Collins, a DOT maintenance engineer for 14 years, was Michael Rodgers' supervisor in June of 1987, when DOT employed the latter as a highway maintenance technician II at its Perry yard. While recovering from a job-related injury, Mr. Rodgers had been assigned to pump gas there.
After Mr. Rodgers began work for DOT, he was furnished a copy of DOT's employee handbook. DOT's Exhibit No. 6. On page 12, the handbook states:
If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time.
This will allow the Department to effectively schedule your work assignments on a daily basis.
When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed.
If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work. If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time.
If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence.
Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given.
DOT's Exhibit No. 4.
On page 43, the handbook discusses the abandonment rule:
JOB ABANDONMENT
After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy.
DOT's Exhibit No. 3.
Mr. Rodgers signed a form acknowledging receipt of the handbook on December 16, 1983. DOT's Exhibit No. 5.
At about four on the afternoon of Monday, June 22, 1987, Mr. Collins asked Mr. Rodgers when his next doctor's appointment was. Mr. Rodgers replied, "I need to see him tomorrow." (T. 35) He did not "state that it would be for illness" (T. 53) or specify the reason for the visit. (T. 74)
Believing Mr. Rodgers had an appointment to see his doctor the following day, Mr. Collins said, "That's fine, when you come back to work bring a doctor's certificate." (T. 17) But the leave Mr. Collins authorized Mr. Rodgers to take was "not a leave of absence for illness." (T. 53) On Tuesday, June 23, 1987, A DOT employee marked Mr. Rodgers absent for the day on "authorized leave" (T. 18) without pay.
Mr. Rodgers, who lives about 60 miles from Perry, travelled to Dr. Hauser's office in Old Town on Tuesday morning "to sit down and talk with him about some information [he] needed," (T. 36-37) concerning an automobile accident's forensic sequelae. He was told to return later that day, because the doctor could not see him immediately. Although he returned at noon, and on four different occasions that afternoon, the doctor gave other patients priority.
Mr. Rodgers then telephoned DOT's Perry yard, and "gave the secretary .
. . the message that [he] was unable to see the doctor and . . . would still need to be off . . . to attempt to see him again on Wednesday the 24th." (T. 24, 38)
When Mr. Collins learned of Mr. Rodgers' conversation with the secretary, he asked William S. Clark to telephone Dr. Hauser's office, at the Tri-County Medical Center. Betty in Dr. Hauser's office told Mr. Clark that, although Mr. Rodgers had in fact visited the office, he had no appointment.
On Wednesday morning, DOT's attendance records were marked to reflect that Mr. Rodgers was absent on authorized leave without pay, although Mr. Collins testified that leave never was authorized for that day. (T. 19, 80) Later Wednesday, Mr. Collins, under the impression that Mr. Rodgers "had lied about going to the doctor for a doctor's appointment," (T. 82) ordered that the attendance records for Tuesday and Wednesday be altered to show that Mr. Rodgers' leave was not authorized on those days. (T. 19, 80, 82)
On the afternoon of Wednesday the 24th, Mr. Rodgers, who had inquired at the office about Dr. Hauser's availability on two occasions earlier in the day, saw Dr. Hauser, discussed effects of the automobile accident, and made an appointment for the following day to have his back examined. (T. 38) On Thursday, the 25th, he kept the appointment, and obtained a slip of paper attesting the fact.
But, in Mr. Collins' view, Mr. Rodgers' employment had ended before he saw the doctor that day: "He was considered to have abandoned his position by 9:00 a.m. Thursday morning since he had not called in [after Tuesday afternoon.]" (T. 79) When Mr. Rodgers returned to work on Friday, June 26, 1987, Mr. Collins read, then returned, the note from the doctor, informed Mr. Rodgers of the changes in the attendance records, and advised him that his employment had terminated.
CONCLUSIONS OF LAW
The Department of Transportation relies on Rule 22A-7.010(2), Florida Administrative Code, which creates a presumption, one that was held to be rebuttable in Clara M. Penney vs. Department of Insurance, No. 85-1530 (DOA; January 31, 1986), that an employee absent without leave for three days has given up his job. The rule is intended to strike a "fair balance" between "swift replacement of ineffective public employees," Hadley vs. Department of Administration, 411 So.2d 184, 188 (Fla. 1982) and "job security and retention." Id.
In upholding Rule 22A-7.10B, as the abandonment rule was then numbered, against the challenge that it was a stratagem to deprive covered employees of a hearing to which they were entitled before the Career Service Commission, the court in Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978) pointed out that no such hearing was available to an employee who submitted a written resignation and stated:
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. Rule 22A-7.10B puts all Career Service employees on notice that absence without authorized leave for three consecutive days is tantamount to a formal resignation. The particular time period is less significant than the principle which provides for some term of absence being construed as a resignation. At 358.
The Department of Transportation failed in the present case, however, to prove the predicate which would give rise to a presumption of abandonment. The evidence did not establish that petitioner Rodger's absence on June 23, 1987, was unauthorized under applicable rules.
Mr. Rodgers' absences on June 24 and 25, 1987, were clearly unauthorized, despite the initial indication otherwise in DOT's records for Wednesday, the 24th. Indeed, Mr. Rodgers never actually requested leave for June 24, 1987, although he left word that he "needed" it. He did not even given notice that he intended to be absent on Thursday the 25th. But the abandonment rule requires the employing agency to demonstrate an employee's absence without leave for three successive work days.
DOT has failed to show that respondent Rodgers was absent without leave on Tuesday, June 23, 1987. On June 22, 1987, his supervisor told him he was authorized to take leave without pay the following day. Since the leave authorized was not sick leave, it was not conditional on Mr. Rodgers' certifying that the absence was occasioned by "personal illness." Rule 22A-8.011(2)(b), Florida Administrative Code. As reflected by DOT's records, before Mr. Collins ordered their alteration, leave was authorized for June 23, 1987.
Only after the fact, on June 24, 1987, did Mr. Collins decide that Mr. Rodgers had misled him in making the request for leave, and purport to revoke authorization for leave granted on the 22nd and taken on the 23rd. If Mr. Rodgers misled Mr. Collins in applying for leave, disciplinary action may be appropriate, but the proof here does not establish abandonment, because it does not show that the leave Mr. Rodgers took on June 23, 1987, was unauthorized.
That DOT reinstate Michael J. Rodgers as a highway maintenance technician II at its Perry yard, with back pay since June 26, 1987.
DONE and ENTERED this 27th day of May, 1988, in Tallahassee, Florida.
ROBERT T. BENTON, II
FILED with the Clerk of the Division of Administrative Hearings this 27th day of May, 1988.
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building
Aaron A. Green, Esquire
P. O. Box 1265 Gainesville, Florida 32602
