vs. ) CASE NO. 89-5714
ALVA J. BARFIELD, )
Respondent. )
Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on January 11, 1990, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented at the hearing as follows: For Petitioner: Linda L. Parkinson, Attorney
For Respondent: Alva J. Barfield, pro se
The issue in this case is whether Respondent abandoned her career-service position with Respondent at the Seminole County Public Health Unit.
By letter dated September 15, 1989, Respondent informed Petitioner that she had been separated from State service for abandonment of position, effective at the close of business on September 15, 1989.
By letter dated September 29, 1989, Respondent requested review of the decision. By letter dated October 18, 1989, the Department of Administration notified Respondent that her request had been forwarded to the Division of Administrative Hearings for a hearing.
At the hearing, Petitioner called six witnesses and offered into evidence five exhibits. Respondent called four witnesses and offered into evidence one exhibit. Both parties offered one joint exhibit. All exhibits were admitted.
No transcript or proposed recommended orders were filed.
At all material times, Respondent was a career-service employee of Respondent. She served as a health service representative assigned to the Seminole County Public Health Unit. Her specific task was to investigate and follow up on contacts for sexually transmitted diseases.
Petitioner's Employee Handbook, which Respondent received when she was hired, states:
You may request annual leave for any purpose desired, but you must obtain Your supervisor's approval before taking annual leave. If an emergency develops, tell your supervisor of the emergency and ask for verbal approval to use annual leave. When you return to work, complete the leave request form for your supervisor's signature.
The Handbook also Provides that certain employees are entitled to one eight-hour personal holiday "at a time which is mutually agreeable to the individual and the immediate supervisor."
The local policy of the Seminole County Public Health Unit required each employee to request leave by filling out the back of a timesheet. In this manner, the employee would show the type of leave requested, the date and time of the leave, the employee's initials. The form provided spaces for the signature of the supervisor and the date described in detail in the Paragraph 5 below. The back of the timesheet states: "All Leave and Overtime must be requested and approved in advance."
The Handbook requires advance approval of annual leave. Although the blanket statement on the back of the timesheet requires advance approval of all leave and overtime, the Seminole County Public Health Unit routinely did not require advance approval for all types of leave. For instance, sick leave, overtime, and annual leave for less than a few hours were normally approved after the fact. On at least two occasions, including one involving Respondent, annual leave for an entire day was also approved after it had beef taken. However, the Seminole County Public Health Unit normally requires advance approval of annual leave for a Period of one day or more.
The instructions on the timesheet direct that the date next to the supervisor's signature indicate the date of the request for leave. Consistent with the varying policies governing leave, the date beside the supervisor's signature on the timesheet was used to show the date of approval of a request for annual leave and the date of the request for sick leave and certain other types of leave.
By negative implication, the Handbook also requires written approval of annual leave for nonemergencies because it expressly permits "verbal approval" for annual leave for emergencies. There are no requirements in the Handbook or the timesheets for written approval of requests for other forms of leave, and the Seminole County Public Health Unit did not maintain enforceable policies to that effect.
Two persons were authorized to approve requests of Respondent for annual leave. The first person was Charlotte Blades, who was the coordinator of the sexually transmitted disease program of the Seminole County Public Health Unit. Ms. Blades was Respondent's immediate supervisor
The other person authorized to approve requests for annual leave was Bernice Duncan, who was the senior community health nurse of the Seminole County Public Health Unit and Ms. Blades' supervisor.
In practice, the written approval of Ms. Blades could be revoked by Ms. Duncan. On one occasion, Respondent requested eight hours' annual leave to attend her son's high school graduation on June 9, 1989. Ms. Blades signed the timesheet on May 23, 1989. Between that date and the date of the leave, Ms. Duncan told Respondent that, although Ms. Blades had signed the timesheet, the leave was not approved. Ultimately, Respondent received approval for leave through 2:30 p.m., rather than 5:00 p.m., on the day of the graduation.
In late July or early August, 1989, Respondent submitted a timesheet requesting 32 hours' annual leave from August 28-31, 1989. About one week later, before Ms. Blades or Ms. Duncan had acted on the request, Respondent changed the request to September 1, which was the Friday before Labor Day weekend, and September 13-14, 1989. In addition, she requested leave with pay for September 15, 1989, as her personal holiday.
According to the timesheets, Ms. Blades approved the September 1 leave request on August 25, 1989, which was a Saturday. She assured Respondent that she would discuss with Ms. Duncan the remaining requests for leave. Respondent followed up with Ms. Blades several times, explaining that she wanted the leave to attend her son's graduation ceremonies from military basic training in South Carolina.
Despite her assurances, Ms. Blades had not mentioned Respondent's request to Ms. Duncan before Ms. Blades became sick and missed work from September 6-9. On the second day of Ms. Blades' absence, Respondent took her request to Ms. Duncan, who said that she had not been aware of Respondent's request. Ms. Duncan told Respondent that Ms. Blades was on sick leave and did not respond further. The following day, Respondent spoke again with Ms. Duncan, who this time assured her that if Ms. Blades were not at work on Monday, September 11, Ms. Duncan would sign the timesheet approving the leave requested for September 13-15.
Ms. Blades returned to work on Monday, September 11. When Respondent asked her in the morning to sign the timesheet, Ms. Blades refused to do so and told her that it had not yet been approved. Consistent with her prior conversations with Respondent, though, Ms. Blades did not say that the request had been disapproved. Respondent then left the office for much of the day. When she returned, Ms. Blades and Ms. Duncan were both out.
The next day, Tuesday, September 12, Ms. Blades spoke with Respondent, but still declined to say whether the request was approved or rejected. She continued to say merely that the request had not yet been approved.
Tuesday afternoon, Respondent told a coworker to tell Ms. Blades that Respondent was going to South Carolina and would be back the following Monday morning. While still in town, Respondent telephoned both supervisors shortly after 8:00 a.m. on Wednesday, but they had not arrived at work yet. Respondent
asked the receptionist to remind Ms. Blades that Respondent had gone to South Carolina and would return the following Monday morning. Both messages were delivered to Ms. Blades, who relayed them to Ms. Duncan.
Respondent then departed for South Carolina, where she remained through at least September 15. At the time of her departure, Respondent knew that her request for annual leave had not been approved and that she was taking unauthorized annual leave.
When she arrived back in the office on September 18, Respondent received a copy of a letter dated September 15 that had been mailed to her the prior Friday. The letter states that Respondent had been separated from State service for abandonment of position, effective at the close of business on September 15, 1989.
The second paragraph of the letter contains material misstatements of fact. It states that Respondent had been advised that, due to the present work situation, her leave could not be approved. The letter also states that she did not contact her supervisor that she would be absent.
No one ever advised Respondent that her leave could not be approved or in fact was rejected until after her return from South Carolina. Also, Respondent informed both supervisors, directly and through third parties, that she would be absent, where she was going, why, and when she would return. However, she did not contact them during the three-day absence.
Concerning the request for leave for a personal holiday, neither Ms. Blades nor Ms. Duncan ever informed Respondent that the date was inconvenient. Under the circumstances, Respondent could reasonably infer that the date was agreeable with Ms. Blades.
At no time did Respondent intend to abandon her career-service position. The facts do not support a reasonable inference that Respondent abandoned her job during the three days in question.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, subject to the following conclusions of law. Section 120.57(1), Florida Statutes.
Rule 22A-7.010(2)(a), Florida Administrative Code, provides:
An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and resigned from the Career Service.
In Tomlinson v. Department of Health and Rehabilitative Services, So. 2d , 15 FLW D324 (Fla. 2d DCA 1990), the court considered the application of the presumption created by the above-cited rule. (Because the case was decided on January 31, 1990, it has not yet become final and is cited for its reasoning rather than precedential value.)
The Tomlinson court observed:
A presumption is typically an evidentiary tool which compels a trier of fact to find the truth of an ultimate fact which is only supported circumstantially by evidence of predicate facts and which is not satisfactorily rebutted by the opposing party's evidence.
Id. at D325. The court reasoned that an employee resisting the application of the regulatory presumption could rebut the predicate fact or the ultimate fact. To rebut the predicate fact, he could prove that he was not absent without authorized leave of absence for three consecutive days. To rebut the ultimate fact, which is more common, he could prove that he did not abandon his job.
In this case, Respondent was absent without authorization for the two days' annual leave taken on September 13 and 14. Prior written approval from Ms. Blades or Ms. Duncan was required, and Respondent failed to obtain it.
There is no requirement for written approval of leave for a Personal holiday. The requirement of mutual agreement implies that more than a mere request is required prior to the taking of the leave. However, the absence of a requirement of affirmative approval in writing allows for an inference of mutual agreement, if supported by the facts.
The facts in this case support an inference of mutual agreement Given repeated opportunities to object to the date, Ms. Blades and Ms. Duncan declined to do so. Instead, they merely indicated that approval had not yet been given. At one point, Ms. Duncan seemed to signal that the date represented no problem for her when she said that, if Ms. Blades did not return to work the following Monday, Ms. Duncan would approve the request. The failure of this condition when Ms. Blades returned to work did not signify that September 15 was inconvenient. An inexplicable refusal to deal with the request in a clear and unequivocal way may effectively preclude an employee from obtaining prior written approval of annual leave, but does not prevent the inference of mutual agreement under appropriate circumstances.
A second reason exists for finding that Petitioner failed to prove that September 15 was not mutually agreeable. Ms. Blades deferred this decision to Ms. Duncan. However, the issue concerning mutual agreement involves the employee's "immediate supervisor," not her supervisor's supervisor. Ms. Duncan was not authorized to object to the date. This is a second basis for the inference that the date was not objectionable.
In addition to disproving the predicate fact that she was absent without authorized leave for three consecutive days, Respondent disproved the ultimate fact that she had abandoned her position. She requested a coworker and a receptionist to inform her supervisor that she would return to work the following Monday morning. More important, she repeatedly requested a decision on her leave request from her supervisors, who responded with silence and evasion.
Respondent intentionally disregarded known rules and policy requiring prior written approval before taking annual leave on September 13 and 14. In the proper forum, Petitioner may seek to discipline Respondent for this violation and perhaps seek termination for cause. But the facts in this case do
not support a finding of abandonment. This is not a case in which an employee blatantly disregards a decision of his supervisor disapproving his request for leave, proceeds to take the disapproved leave for three days or more, and relies upon his announced intention to return as sufficient insurance against a finding of abandonment. This is a case where Respondent's persistent, good-faith efforts to obtain a mere response to her longstanding request for leave were met first by inexplicable evasiveness and then by an attempt to dismiss Respondent for cause in a process intended only to consider questions of abandonment.
RECOMMENDED that the Department of Administration enter a Final Order finding that Respondent has not abandoned her position in Career Service employment with the State of Florida.
ENTERED this 28th day of February, 1990, in Tallahassee, Florida.
ROBERT D. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990.
Linda L. Parkinson Attorney
Augustus D. Aikens, Jr. General Counsel
Gregory L. Coler Secretary
Alva J. Barfield 1010 Locust Avenue
