STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUGH G. PURKEY, )

)

Petitioner, )

)

vs. ) Case No. 89-1186

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 20, 1989, in Miami, Florida, before Joyous D. Parrish, a Hearing Officer with the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Paul H. Field

WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE

Grove Plaza Building, 5th Floor 2900 Middle Street

Miami, Florida 33133

For Respondent: Charles Gardner

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32299-0458 STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner abandoned his position and resigned from the career service.

PRELIMINARY STATEMENT

This case began on January 18, 1989, when the Petitioner, Hugh G. Purkey, reguested an administrative review of his termination fron employment.

According to the Departinent of Transportation (DOT), Petitioner had left employment in 1985 since he had been deemed to have abandoned his position and resigned from the Career Service. On March 7, 1989, the Department of Administration referred the matter to the Division of Administrative Hearings for formal proceedings.

At the hearing, the parties presented the testimony of the following witnesses: Clive Taylor, Maureen Fitzell, Diana Sellers, and Hugh (Bill) Purkey. The following documents were admitted into evidence: Petitioner's exhibits 1 through 10 and DOT exhibits 1 through 8 and 11 through 14. DOT

exhibits 9 and 10 were proffered for the record. The transcript of the proceedings was filed with the Division of Administrative Hearings on October 2, 1989. Thereafter, the Petitioner requested an extension of the time in which to file a proposed recommended order. That request was not opposed by DOT and an order was entered granting the motion. The parties were directed to file their proposed recommended orders on or before October 30, 1989. Both parties timely filed proposals which have been considered in the preparation of this order.

Rulings on their proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at tee hearing, the following findings of fact are made:

1. On or about December 5, 1969, the Petitioner, Hugh G. Purkey became employed by the State of Florida, Department of Transportation. In 1984, Petitioner held the position of Engineer II, Area Engineer and was assigned to the North Dade Maintenance Yard (NDMY).

   
   

2. In 1983, Petitioner executed a form which acknowledged he had received a complete copy of the DOT employee handbook. The acknowledgement specified that enployees are responsible to review the handbook in detail and to request any clarification needed from a supervisor.

   
   

3. The handbook provided the following regarding job abandonnent:

   
   

   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.

   
   

4. On or about October 23, 1984, Petitioner filed a request for a medical leave of absence. This request was based upon Petitioner's pulmonary disorder which prevented him from performing his duties with the NDMY. Petitioner was to receive pay based upon his accrued annual and/or sick leave through Novenber 6, 1984, thereafter, he was to be on leave without pay for a period of four months. This leave request was approved by the Petitioner's supervisor, Clive Taylor. Mr. Taylor was the only supervisor or employee at the NDMY who was authorized to grant a leave of absence for Petitioner.

   
   

5. On January 28, 1985, an extension of Petitioner's leave of absence was granted by Mr. Taylor. This extension authorized two additional months of leave and specified that Petitioner would return to work no later than May 6, 1985.

   
   

6. Prior to the leave of absence described above, Petitioner had performed his duties with the NDMY in an above satisfactory manner. Prior to May 6, 1985, Petitioner had complied with the rules and regulations regarding requests for leave.

   
   

7. Petitioner did not return to work on May 6, 1985. Petitioner did not file a request for a leave extension. Mr. Taylor did not approve an extension of the leave beyond May 6, 1985. Petitioner was absent without authorized leave

   on May 6, 7, and 8, 1985. On May 10, 1985, Mr. Taylor executed a form entitled "Resignation and Exit Interview Form." This form provided, in part: "Mr. Purkey is not available for signature" and "Mr. Purkey is pursuing regular disability retirement." Petitioner did not execute the form but was advised of its content by telephone.

   
   

8. Sometime prior to April 30, 1985, Petitioner had applied for disability retirement benefits. That request was filed with the Department of Administration, Division of Retirement and was denied based upon a determination that Petitioner was not totally and permanently disabled from rendering useful and efficient service. When that determination was made, Petitioner elected to file for regular retirement since he had accrued over ten years with the State. Thereafter, Petitioner received retirement benefits which were granted and paid retroactively from February 1, 1985.

   
   

9. On July 9, 1986, Petitioner received a physician's statement which provided:

   
   

   It is my professional opinion that this patient may return to work requiring no strenuous physical activity providing that the patient continue on his medication and return for regular checkups in any office.

   
   

10. Upon receipt of the physician's statement, Petitioner contacted the NDMY to request that he be allowed to return to work. Petitioner was advised that he had been terminated from employment in May, 1985, based upon his failure to return to work following his leave of absence.

    
    

11. On July 29, 1986, Petitioner wrote to John C. Gocdnight, Assistant Secretary of Transportation, and requested Mr. Goodnight's assistance to allow Petitioner to return to DOT. That letter admitted that Petitioner knew his position had been filled but claimed he had been on leave. Petitioner maintained that he was "much too young to retire." The letter failed to mention that Petitioner had already been receiving retirement benefits.

    
    

12. Petitioner listed his address subsequent to November, 1984, as Dunnellon, Florida.

    
    

13. There is no record in Petitioner's personnel file which confirms DOT sent, and Petitioner received, a notice of his termination from employment in May, 1985. Petitioner did not request a hearing to review that termination until January, 1989.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

15. Rule 22A-7.010, Florida Administrative Code, provides that an employee who has been deemed to have abandoned his position with the Career Service shall be provided an opportunity to have a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment. The employing agency is required to provide a notice to inform the employee of the right to petition for the review. The rule was substantially the same at the time of Petitioner's separation from employment and the parties concur that Petitioner

    was entitled to the notice. DQT is unable to establish that Petitioner was given the required notice at the time of his termination.

    
    

16. At the time of Petitioner's leave of absence, Rule 22A-8.02, Florida Administrative Code, provided that a leave of absence with or without pay was to be in writing and approved by the appropriate agency authority. Clearly, Petitioner did not obtain written authority for his absence subsequent to May 5, 1985. Consequently, his absence for the period subsequent to that date was unauthorized.

    
    

17. Moreover, Petitioner's election to seek retirement benefits, coupled with that announcement to his supervisor, gave the impression that Petitioner knew or should have known, based upon the employee rules, that his employment with the DOT at the NDMY was being terminated.

    
    

18. Petitioner claims that the failure to give the required notice entitles him to return to employment. Such conclusion is unfounded. The purpose of the notice is to provide Petitioner with a point of entry to challenge the facts and circumstances of the abandonment. That purpose has been met, albeit in a tardy fashion, by the hearing in these proceedings. Had the facts been different and Petitioner had shown the leave authorized, the allegation of abandonment would have failed. To the contrary, Petitioner has failed to establish that he was either entitled to the leave, that it was granted, or that DOT was required to process the paperwork for him in his absence. The burden was on the Petitioner to follow up on a leave request and to verify it had been approved. Petitioner simply remained silent, pursued his retirement benefits, and, much later, challenged DOT to return to work. This action, or lack of action, does not refute the simple fact that Petitioner was absent without authorization. Consequently, he abandoned his position.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Administration enter a final order finding that the Petitioner, Hugh G. Purkey, abandoned his position and resigned from the Career Service.

DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989.

APPENDIX

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraph 1 is accepted.

2. The first portion of paragraph 2 is accepted; the designation of his last actual day of employment is in error and is rejected as contrary to the weight of the evidence. The date indicated, January 20, 1984, was not his last day of actual employment. According to DOT exhibit 8 (the referenced citation) that date was the last date worked. Petitioner's last date of employment would have been calculated from May 5, 1985 (the last date of his authorized leave).

3. With regard to paragraphs 3 and 4, it is accepted that Petitioner used his accrued sick and annual leave until they were exhausted. After the paid leave was used, Petitioner applied for and received, by filing the appropriate form, an authorized leave without pay.

4. Paragraph 5 is accepted.

5. Paragraph 6 is accepted.

6. Paragraph 7 is accepted.

7. Paragraph 8 is accepted.

8. Paragraph 9 is accepted.

9. Paragraph 10 is rejected as comment, argument, or recitation of testimony which does not constitute a finding of specific fact.

10. Paragraph 11 is rejected as incomplete or contrary to the weight of the evidence.

11. Paragraph 12 is rejected as contrary to the weight of the evidence.

12. Paragraph 13 is rejected as contrary to the weight of the credible evidence.

13. Paragraph 14 is rejected as vague and ambiguous. It is accepted that Petitioner filed his original leave request and that Ms. Sellers assisted him.

14. Paragraph 15 is rejected as incomplete and contrary to the weight of the evidence.

15. Paragraph 16 is accepted to the extent that it provides that clerks would assist persons who requested such assistance.

16. The first three sentences of paragraph 17 are accepted; the balance of the paragraph is rejected as argument or contrary to the weight of the evidence.

17. The first sentence of paragraph 18 is accepted. The remainder of the paragraph is rejected as irrelevant or unknown. DOT did not establish that the form was sent and received by Petitioner.

18. Paragraph 19 is accepted.

19. Paragraph 20 is rejected as a provision of law. The parties have not disputed that the notice is required.

20. Paragraph 21 is accepted to the extent that DOT cannot prove that such notice was provided to Petitioner.

21. Paragraph 22 is rejected as incomplete or contrary to the weight of the evidence.

22. Paragraph 23 is rejected as irrelevant since Petitioner did not request that his medical leave be continued as required by the rule.

23. Paragraph 24 is rejected as irrelevant. Further, the authorization to return was not without limitation.

24. Paragraph 25 is rejected as contrary to the weight of the credible evidence.

25. Paragraph 26 is rejected as irrelevant.

26. Paragraph 27 is rejected as irrelevant. With regard to the letter to Goodnight, Petitioner admitted in that letter that he knew his position had been filled.

27. Paragraph 28 is rejected as irrelevant.

28. Paragraph 29 is accepted but is irrelevant.

29. Paragraph 30 is accepted.

30. Paragraph 31 is rejected as irrelevant or not covered by the record.

31. With regard to paragraph 32, it is accepted that Petitioner's request for disability retirement was denied and that he ultimately elected to seek early retirement; otherwise, it is rejected as hearsay uncorroborated by direct evidence.

32. Paragraph 33 is accepted.

33. Paragraph 34 is rejected as irrelevant or contrary to the credible evidence.

34. Paragraph 35 is rejected as irrelevant.

35. Paragraph 36 is rejected as irrelevant or contrary to the weight of credible evidence.

36. Paragraph 37 is rejected as irrelevant.

37. Paragraph 38 is rejected as comment, argument, or recitation of testimony.

38. Paragraph 39 is accepted but is irrelevant.

39. Paragraph 40 is rejected as contrary to the weight of the credible evidence.

40. Petitioner's section described as "Analysis" has not been considered findings of fact.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY DOT:

1. Paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21,

22, 24, and 25 are accepted.

1. Paragraph 2 is rejected as Irrelevant.

2. Paragraph 4 is rejected as irrelevant.

3. Paragraph 19 is rejected as irrelevant.

4. Paragraph 20 is accepted but is unnecessary.

5. Paragraph 23 is rejected as unsupported by the record.

6. DOT's section described as "Analysis" has not been considered findings of fact

COPIES FURNISHED:

Paul H. Field

WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE

Grove Plaza Building, 5th Floor 2900 Middle Street

Miami, Florida 33133

Charles Gardner

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Ben G. Watts, Acting Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 89-001186

Orders for Case No: 89-001186