STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0798

)

KENNETH M. WATSON, )

)

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 February 15, 1989, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street, MS #58

Tallahassee, Florida 32399-0458

For Respondent: Jerry G. Traynham, Esquire

Post Office Box 4289 Tallahassee, Florida 32303

INTRODUCTION

The Petitioner, the Department of Transportation (hereinafter referred to as the "Department"), notified the Respondent, Kenneth M. Watson, by letter dated November 24, 1987, that he had been removed from his position with the Department effective 5:00 p.m., November 6, 1987, for failing to report to work for three consecutive work days. Mr. Watson requested a formal administrative hearing to contest the Department's action by letter received by the Department on November 25, 1987.

At the commencement of the formal hearing the style of this case was amended, without objection, to reflect the fact that the Department has the burden of proof in this proceeding.

Mr. Watson was not present at the formal hearing. Counsel for Mr. Watson requested permission to take, and submit, Mr. Watson's deposition testimony at a later date. The Department objected to this request. The Department's objection was sustained.

The parties stipulated to the admissibility of "DOT" exhibits 1-5, Joint Exhibit 1 and Respondent's exhibit 1. These exhibits were, therefore, accepted into evidence.

The Department presented the testimony of Joseph R. Heath and Edward Kyle.

No witnesses were called on behalf of Mr. Watson. Mr. Watson did, however, offer the deposition testimony of Mr. Heath, L. W. Rosier, Jr., Tommy Gay and Elzie Mercer. These depositions were marked as Respondent's exhibits 2-4 and were accepted into evidence.

Finally, official recognition of Chapter 22A, Florida Administrative Code, was taken.

The parties were given thirty days from the date the transcript of the formal hearing of this case was filed with the Division of Administrative Hearings' to file proposed recommended orders. The transcript was filed on March 16, 1989. Therefore, proposed recommended orders were required to be filed on or before April 17, 1989. Neither of the parties filed proposed recommended orders on or before April 17, 1989. The Petitioner filed a proposed recommended order on April 28, 1989.

The undersigned was contacted by telephone after April 17, 1989, by counsel for the Respondent. He represented that the parties had not received the transcript of the hearing of this case when it was filed. He also represented that the parties had agreed that the Petitioner's proposed recommended order should be considered even though it was not filed before April 17, 1989, and that the Respondent should be given until June 5, 1989, to file his proposed recommended order. The undersigned informed counsel for the Respondent that the proposed recommended orders of both parties would be considered before this Recommended Order was issued. The Respondent filed a proposed recommended order on June 5, 1989.

The proposed recommended orders filed by the parties 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 Respondent, Kenneth M. Watson, abandoned his career service position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code, by being absent from work without authorization on November 4, 5 and 6, 1987?

FINDINGS OF FACT

1. Mr. Watson was employed by the Department from June l2, 1985, until November 6, 1987.

   
   

2. When Mr. Watson was first employed by the Department he was given a copy of the Florida Department of Transportation Employee Handbook. Mr. Watson was, therefore, informed of the following, which appears on page 43 of the Handbook (DOT exhibit 5-B):

   
   

   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.

   
   

   The leave policy of the Department requires that employees "[g]et your supervisor's approval before taking leave." Page 21 of the Handbook (see DOT exhibit 5-A).

   
   

3. In November, 1987, Mr. Watson was employed by the Department as a Highway Maintenance Technician II. He was a Career Service employee.

   
   

4. In November, 1987, Mr. Watson worked under the direct supervision of Tommy Gay. Mr. Gay was a welder and had no authority over Mr. Watson other than to supervise work they performed together. Mr. Gay had no authority to approve personal absences from work for Mr. Watson.

   
   

5. Mr. Watson's next immediate supervisor was Elzie Mercer, a Highway Maintenance Supervisor IV. Mr. Mercer had authority to approve personal absences from work for Mr. Watson.

   
   

6. Mr. Watson's next immediate supervisor was Joseph Heath, the District Bridge Inspection Engineer. Mr. Heath also had the authority to approve personal absences from work for Mr. Watson.

   
   

7. On November 3, 1987, Mr. Watson was absent from work. This absence had been approved by the Department.

   
   

8. Mr. Watson was supposed to return to work on November 4, 1987. He was supposed to be at work on November 5 and 6, 1987, also.

   
   

9. Mr. Watson did not report to work with the Department on November 4, 5 or 6, 1987. Neither Mr. Mercer or Mr. Heath approved Mr. Watson's absence for November 4, 5 or 6, 1987.

   
   

10. Mr. Watson did not directly contact Messrs. Gay, Mercer and Heath, or anyone else at the Department about his absence on November 4, 5 or 6, 1987.

    Mr. Watson did not request approval for his absence on November 4, 5 or 6, 1987.

    
    

11. A woman who identified herself as Mrs. Green called the Department on November 4, 1987, and spoke with the receptionist, Carol Ellis. Mrs. Green informed Ms. Ellis that "if Mr. Watson does not show up at his job in a couple of days he is probably in jail." Ms. Ellis informed Messrs. Gay and Mercer about this conversation.

    
    

12. Mrs. Green called again on November 6, 1987, and spoke with Barbara Taylor, a secretary with the Department. Ms. Taylor informed Mr. Heath of this phone call.

    
    

13. Mr. Heath had Mr. Gay call the Duval County Jail. Mr. Gay verified that Mr. Watson was in jail.

    
    

14. Mr. Watson first spoke with Mr. Heath on November 10, 1987. Mr. Watson informed Mr. Heath that he was in jail. Mr. Watson requested approval of annual and sick leave for the period of his absence. Mr. Watson was told that he could not use sick leave for the absence. Mr. Heath also informed Mr. Watson that he was denying the request for annual leave and that Mr. Watson would be

    treated as having abandoned his position with the Department because of his unauthorized absence.

    
    

15. Mr. Watson spoke with Mr. Heath by telephone again on November 13, 1987. Mr. Heath again denied Mr. Watson's request for leave.

    
    

16. On November 17, 1987, Mr. Watson appeared at work for the first time since before his authorized absence on November 3, 1987. He was informed that he could not work and he left.

    
    

17. Messrs. Mercer and Heath were not contacted by Mr. Watson and requested to approve his absence from work on November 4, 5 and 6, 1987, until November 10, 1987, or later. At no time did Mr. Watson obtain approval of his absence.

    
    

18. Mr. Watson was informed by letter dated November 24, 1987, that he had abandoned his position with the Department.

    
    

19. The Department received a letter on November 25, 1987, requesting a formal administrative hearing.

    
    

20. Mr. Watson had sufficient annual leave to cover his absence from the Department on November 4, 5 and 6, 1987. He did not have sufficient annual leave to cover his absence through November 17, 1987.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

22. Mr. Watson has been dismissed from his employment with the Department because of his failure to report to work for three consecutive work days on November 4, 5 and 6, 1987. The Department has dismissed Mr. Watson pursuant to the authority of Rule 22A-7.010(2)(a), Florida Administrative Code, which 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.

    
    

23. The circumstances under which an employee 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.

    
    

24. Pursuant to this Rule, employees must generally obtain prior approval for any leave or absence unless the absence is caused by an emergency.

25. The evidence in this case proved that Mr. Watson was absent from his position with the Department for the three consecutive workdays of November 4, 5 and 6, 1987. The evidence also proved that Mr. Watson did not receive approval for his absence prior to, or during, his absence. The absence was not due to an emergency.

    
    

26. It is true that the Department was informed by someone by the name of Mrs. Green that Mr. Watson "probably was in jail." It is also true that the Department determined that Mr. Watson was, in fact, in jail during his absence. These events do not, however, relieve an employee of his or her responsibility to contact his or her immediate supervisor and obtain approval for an absence. An employee should contact his or her immediate supervisor directly, if the employee is able to do so, and request approval of an absence. The evidence presented in this case failed to prove that Mr. Watson met his obligation to inform the Department of his absence, or that he was unable to do so, or that requested approval for his absence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued by the Department of

Administration concluding that Kenneth M. Watson abandoned his career service position with the Department.

DONE and ENTERED this 16th day of June, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989.

APPENDIX

Case Number 88-0798

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) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1-3.

2-3 4.

4-5 5.

6 7.

7 11.

8 13.

9 11-15.

10 16.

1. Hereby accepted.

2. See 17.

13 13.

1. 9. But see 16. Mr. Watson attempted to return to work on November 17, 1989.

2. Hereby accepted.

16 18.

17-18 2.

19-20 Although generally true, the Department failed to present evidence sufficient to support these policies. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d

380 (Fla. 1st DCA 1985).

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1 and 3-6.

2 7.

3 9.

4 11.

5 12.

1. Except for the last three sentences, these proposed findings of fact are not supported by the weight of the evidence. The last three sentences are accepted in findings of fact 14-16.

2. Hereby accepted.

3. Not supported by the weight of the evidence or irrelevant in this de novo proceeding.

4. Not supported by the weight of the evidence or argument.

5. See 20.

6. Not supported by the weight of the evidence.

7. Hereby accepted.

8. Irrelevant in this de novo proceeding.

COPIES FURNISHED:

Jerry G. Traynham, Esquire Post Office Box 4289 Tallahassee, Florida 32315

Larry D. Scott Senior Attorney

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS #58

Tallahassee, Florida 32399-0458

Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 88-000798

Orders for Case No: 88-000798