Judges: JOSE DIEZ-ARGUELLAS
Agency: Office of the Governor
Latest Update: Feb. 25, 1988
Summary: Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?Respondent failed to prove that petitioner's request for leave time was disapproved and therefore respondent cannot conclude that petitioner abandoned her position.
87-3828STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
LOUIS J. YOUNG, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3828
) DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Jose A. Diez-Arguelles, a duly designated Hearing Officer of the Division of Administrative Hearings. The hearing was held on January 4, 1988, in Starke, Florida.
APPEARANCES
For Petitioner: Rodney W. Smith, Esquire
409 North East First Street Post Office Box 628 Alachua, Florida 32615
For Respondent: Perri M. King, Esquire
Assistant General Counsel Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32399-2500 BACKGROUND
By certified letter from M. R. Hicks, Correctional Assistant Superintendent II, the Respondent, The Department of Corrections, notified Petitioner, Louis J. Young, that he had been deemed to have abandoned his position with the Respondent and had resigned from the Career Service System effective July 23, 1987. By letter dated August 12, 1987, Mr. Young petitioned the Secretary of the Department of Administration for a review of the facts and a ruling as to whether the circumstances in this case constitute abandonment of position. The Department of Administration elected to request assignment of a Hearing Officer for the Division of Administrative Hearings to conduct further proceedings in this case.
At the formal hearing, Petitioner testified on his own behalf and introduced two exhibits into evidence. The Respondent presented the testimony of Milton H. Hicks, Bruce Fitzgerald, Wanda Phillips and Norman Hedding and introduced one exhibit into evidence.
The Respondent filed "Proposed Findings of Fact and Conclusions of Law." The Petitioner filed "Petitioner's Argument and Citation of Law." Both documents contain proposed findings of fact and these are addressed in the attached Appendix.
ISSUE
Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
FINDINGS OF FACT
Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years.
Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution.
Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk.
Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner.
On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California.
Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question.
The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved.
Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation.
Petitioner remained in town for the next four days, without reporting for work, and left for California.
On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System.
Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back.
Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
CONCLUSIONS OF LAW
Rule 22A-7.010(2)(a), Florida Administrative Code, provides:
(2) Abandonment of position.
(a) 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 Public Employees Relations 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. (hereinafter referred to as "the Rule")
The Rule creates a presumption that an employee who is absent from work for three days without authorized leave has abandoned his position. The presumption is rebuttable, since the Rule entitles an employee subject to the Rule to a review of the facts and a ruling as to whether the circumstances constitute abandonment. Penny v. Department of Insurance, Case No. 85-1530 (DOA January 31, 1986).
The Rule has been interpreted to be a substitute for a formal resignation:
While some employees go through the formal process of submitting a resignation in writing, others leave work abruptly or simply fail to show up for work. There must be some point at which the Division [of Personnel] may be able to say that the employee is not returning, process the paper work and refill the vacant position.
Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978). Also, the Rule is intended to promote the state's interest in replacing public employees who do not work, "by facilitating elimination of those who do not report to work for a certain time." Hadley v. Department of Administration, 411 So.2d 184, 188.
There is no dispute that Petitioner was absent from work for 3 consecutive days without receiving written authorization. Therefore, the Department's position is that the Rule applies and Petitioner is deemed to have abandoned his position. Petitioner argues that he did not abandon his position, but that he went on leave which he assumed had been authorized, even though during his last contact with his supervisor, Mr. Hedding, Petitioner was not told the leave had been authorized.
The Department's position is essentially that, once an employee is absent for three days without authorized leave, the inquiry is over and the employee is deemed to have abandoned his employment. This argument overlooks the plain terms of the Rule, which give employees the right to a review of the facts and to a ruling on whether the circumstances constitute abandonment. If the Rule were intended to operate as the Department asserts, there would be no need for further review once it is established that an employee was absent for three days without authorized leave. In this regard, the Rule should be contrasted with Rule 22A-8.002(5)(b), Florida Administrative Code, which does not provide for further review:
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 3 consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service. (emphasis added) Rule 28A-8.002(5)(b), F.A.C.
In this case, Petitioner applied for leave approximately three months prior to the time the leave was needed. As discussed in Finding of Fact number 7, supra, the Department failed to act on the leave request. The leave request was neither approved nor disapproved. Indeed, if the leave had been disapproved, this case would be controlled by Rule 22A-8.002(5)(b), supra, and there would be no need to examine any facts and circumstances other than to establish an unauthorized three-day absence.
Petitioner's actions in this case are not the actions of a person planning or intending to abandon his job. He filed a request for leave approximately three months in advance. He inquired often about the status of his request. After his last conversation with Mr. Hedding, Petitioner assumed the leave would be approved. On his last day at work prior to going on vacation, Petitioner told people at the office that he was going on vacation and filled out the necessary pay slips for the payroll records to reflect his situation.
While one can argue that a more prudent and careful person would have made sure that the leave request had been approved, Petitioner acted upon his belief that the leave request would be granted. Therefore, this is not the type of case where the Rule should operate to sever an employee from Career Service.
The Department shares part of the blame for the events leading up to this case by not making a clear and unequivocal decision on a leave request.
If, as noted earlier, the Rule is intended to be a substitute for a formal resignation, its application should not result in a finding of abandonment in this case, since all the indications are that Petitioner intended to return to work after his vacation. This is not a case where an employee fails to notify his employees of his whereabouts and fails to report for work for three consecutive days. In that situation, the Rule serves its purpose by serving as a substitute for a resignation.
In his posthearing filing, "Petitioner's Argument and Citation of Law," Petitioner for the first time in this proceeding argues that the doctrine of estoppel by judgment is applicable to this proceeding, based on a decision made by an Appeals Referee and approved by the Unemployment Appeals Commission of the State of Florida. Therefore, Petitioner argues, certain factual issues in this proceeding have been resolved previously in favor of the Petitioner and cannot be relitigated. In view of the findings of fact made here, there is no need to determine whether the doctrine of estoppel by judgment is applicable to this case. The only finding of fact made by the Appeals referee which is relevant to this case is that the request for leave was never disapproved. That same finding is made here based on the evidence presented at the hearing.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances
presented in this case do not constitute abandonment as contemplated by Rule
22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987.
DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida.
JOSE A. DIEZ-ARGUELLES
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 25th day of February, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828
The parties submitted-proposed findings of fact, which are addressed below.
Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact
Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing.
Respondent's Proposed Findings of Fact Respondent's
Paragraph Number Ruling and RO Paragraph
Accepted. RO 1.
Accepted, as modified to reflect approximate dates. RO 2, 3.
Rejected. Mr. Hedding assumed this to be the case.
Accepted, generally as modified. RO 4.
Accepted, generally. RO 5.
Accepted, as modified to reflect approximate dates. RO 6.
Accepted, as modified. RO 6, 7.
First sentence accepted. RO 9. Second sentence rejected as irrelevant.
Accepted, generally. RO 10.
Rejected as irrelevant.
COPIES FURNISHED:
Rodney W. Smith, Esquire Louis A. Vargas, Esquire
409 North East First Street General Counsel
Post Office Box 628 Department of Corrections
Alachua, Florida 32615 1311 Winewood Boulevard
Tallahassee, Florida 32399-2500
Perri M. King, Esquire
Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard
Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500
Adis Vila, Secretary
435 Carlton Building Tallahassee, Florida 32399-1550
Augustus D. Aikens, Jr. General Counsel
435 Carlton Building Tallahassee, Florida 32399-1550
Docket for Case No: 87-003828
Orders for Case No: 87-003828
| Issue Date |
Document |
Summary |
|
May 23, 1988 |
Agency Final Order
|
|
|
Feb. 25, 1988 |
Recommended Order
|
Respondent failed to prove that petitioner's request for leave time was disapproved and therefore respondent cannot conclude that petitioner abandoned her position.
|
