STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNA TORRES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7057

) DEPARTMENT OF TRANSPORTATION )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Dade County, Florida, on February 15, 1990, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Mr. Frank King

Council Representative AFSCME Florida Council 79 2171 N.W. 22nd Court Miami, Florida 33142

For Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street, MS #58

Tallahassee, FL 32399-0458 STATEMENT OF THE ISSUES

The basic issue in this case is whether the Petitioner abandoned her career service position of employment with the Respondent as a toll collector.

PRELIMINARY STATEMENT

At the hearing on February 15, 1990, both parties presented the testimony of witnesses and offered exhibits. Following the hearing, a transcript of the proceedings was filed with the Hearing Officer on March 27, 1990. Initially, the parties were allowed until April 6, 1990, within which to file their proposed recommended orders. At the request of the Respondent, the deadline for filing proposed recommended orders was extended until April 30, 1990. The Petitioner filed a timely Statement Of Facts and the Respondent timely filed Respondent's Proposed Findings Of Fact And Conclusions Of Law. The parties' post-hearing submissions have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the Appendix hereto.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found:

1. The Petitioner, Anna Torres, (hereinafter "Torres") worked for the Department of Transportation as a toll collector at the Golden Glades toll plaza and was a career service employee at all times pertinent to this case. At the time of the events giving rise to this case, Torres had been employed by the Department for about eight years.

   
   

2. Torres was authorized to be on approved leave from October 24, 1989, through November 8, 1989. Torres used that period of leave to drive from South Florida to California to visit her parents. Torres was accompanied on the trip by her roommate. Torres was expected to return to work on November 9, 1990.

   
   

3. Torres' father had been sick for several years and during her visit his condition took a sudden turn for the worse, as a result of which it was necessary for her father to be hospitalized. Torres was very concerned about her father's medical condition and felt a need to remain in California until it could be determined whether her father was going to recover from his worsened condition. To facilitate a longer stay in California, Torres' mother offered to pay Torres' airfare from California to Florida in the event Torres could not obtain additional leave, and the roommate offered to drive the car back.

   
   

4. On November 7, 1989, Torres placed a telephone call from her parents' home in California to the Golden Glades toll plaza. She spoke with Mildred Burham, who was, and is, the assistant manager at the Golden Glades toll plaza and the supervisor of one of the shifts. Mildred Burham was not the supervisor of Torres' shift. The essence of what Torres told Mildred Burham is that, because of a family emergency, Torres needed to stay in California for another two weeks and wanted a two week extension of her vacation. Torres also asked Mildred Burham to convey the message to Vera Hulse. 1/ Vera Hulse was, and is, the manager of the Golden Glades toll plaza. At that time, Torres did not have sufficient annual or sick leave to cover an additional absence of two weeks.

   
   

5. During the November 7, 1989, telephone conversation, Mildred Burham told Torres that she (Burham) would "check into" the request for additional leave and would convey Torres' message to Vera Hulse. Ms. Burham did not tell Torres that the two week extension of her vacation was approved. 2/

   
   

6. During the November 7, 1989, telephone call, Torres did not give Ms. Burham the telephone number at her parents' house in California. Instead, she told Ms. Burham that if they needed to get in touch with her, they could call Torres' son at her home in Florida and he could give them the California telephone number.

   
   

7. When Ms. Burham told Vera Hulse about the telephone call from Torres, something apparently got lost in the translation. The message communicated to Ms. Hulse was to the general effect that Torres had called and said that because of a family problem Torres would not be back to Florida for another two weeks. Ms. Hulse was not advised that Torres was requesting leave; only that Torres would be two weeks late getting back due to a family problem.

   
   

8. Torres was scheduled to work on the following days: November 9, 10, 11, 14, and 15, 1989. Torres did not report for work on any of those days, nor did

   she have any other communication with her employer after the telephone communication of November 7, 1990, until November 20, 1989, when Torres called again. Between November 9 and November 20, 1989, Ms. Burham and Ms. Hulse called Torres' home telephone number in an effort to contact her son and obtain the telephone number where Torres was staying in California. Those efforts were unsuccessful. On November 9, 10, 11, 14, and 15, 1989, Torres was placed on unauthorized leave without pay. On November IS, 1989, the Department sent Torres a letter advising her that because she had failed to report for work and had been on unauthorized leave without pay since November 10, 1989, she was deemed to have abandoned her position and to have resigned from the Career Service.

   
   

   CONCLUSIONS OF LAW

   
   

9. Based on the foregoing findings of fact and on the applicable legal precedents, the following conclusions of law are made:

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.57, Fla. Stat.

    
    

11. The Department of Administration has adopted Rule 22A-7.010, Florida Administrative Code, governing certain separations from state employment. Section 2(a) of that rule provides:

    
    

    An employee who is absent without author- ized leave of absence for 3 consecutive work days 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; how- ever, 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.

    
    

12. The effect of the above-quoted rule was discussed at length in the recent case of Tomlinson v. Department of Health and Rehabilitative Services, 15 FLW D324 (Fla. 2nd DCA 1990), in which the court held that the rule does not create a conclusive presumption. 3/ In this regard, the court explained:

    
    

    After twenty-eight years of employment with the state, Mr. Tomlinson failed to contact his supervisor during a one-week illness. Relying on Florida's constructive abandonment regula- tion, Florida Administrative Code Rule 22A- 7.010(2)(a), HRS notified Mr. Tomlinson that his unexcused absence for more than three days was a voluntary abandonment of his position with HRS. Mr. Tomlinson appealed the HRS decision to DOA. At the administrative hearing, DOA erroneously applied the constructive abandonment regulation as a conclusive presumption. The regulation is, at most, a rebuttable presumption. Although Mr.

    Tomlinson failed to disprove the predicate fact within the presumption, i.e., that he was absent without authorization for three conse- cutive days, he successfully disproved the ultimate fact within the presumption, i.e., that he abandoned his job. This was all that was required of Mr. Tomlinson to overcome the state's claim that he had "separated" from his position. (emphasis added)

    
    

13. In this case, Torres, like Tomlinson, has failed to disprove the predicate fact within the presumption, because Torres was absent without authorization for more than three days.4/ But Torres, like Tomlinson, has successfully disproved the ultimate fact within the presumption, because it is clear from the record in this case that she at all times intended to return to her job, albeit not as soon as her employer wanted her to return. The facts in this case are quite similar to those in William Grimsley v. Department of Health and Rehabilitative services, DOA Case No. AB-89-09, DOAH Case No. 89-1183 (Final Order issued Oct. 30, 1989), in which the Department of Administration concluded the presumption of abandonment had been successfully rebutted. Further, in this case the employer knew, as a result of the November 7, 1989, telephone call, that Torres intended to return to her job. Torres' decision to extend her leave without her employer's approval of the extension may constitute grounds for taking disciplinary action against Torres. It does not, however, constitute a voluntary abandonment of her position, especially in light of the fact that she specifically notified her employer that she would return in two weeks.

Accordingly, it must be concluded that Torres has successfully rebutted the rule-created presumption.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Department of Administration enter a final order in this case concluding that the Petitioner, Anna Torres, did not abandon her position of employment with the Department and ordering that she be reinstated to her position as a toll collector with back pay.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 27th day of June, 1990.

MICHAEL M. PARRISH, 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 27th day of June, 1990.

ENDNOTES

1/ There is a great deal of conflict in the record regarding exactly what Torres said to Burham. There is also conflict as to whether there was one telephone call or two. The findings I have made in this regard are a synthesis of what most likely happened, based on the preponderance of the evidence.

2/ Again, there is a great deal of conflict in the record regarding what Ms. Burham told Torres. The findings I have made are a synthesis of what most likely happened based on the preponderance of the evidence.

3/ The Department of Administration has in a more recent decision concluded that the presumption created by the rule is a rebuttable one. See Final Order in Michael A. Doub v. Department of Corrections, DOA Case No. AB-89-28, DOAH Case No. 89-3532 (Final Order issued Feb. 19, 1990.)

4/ Although Torres has argued that she had a right to believe, and that she in fact believed, that her request for extended leave had been approved, there is no factual basis for such a belief. Torres herself testified that Ms. Burham's response was that Burham would "check into" the request.

APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-7057

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1 through 5: Accepted in substance, with some unnecessary details omitted.

Paragraph 6: Accepted that Petitioner called the Plaza. Other details rejected as not supported by competent substantial evidence.

Paragraphs 7 through 11: Accepted in substance with some unnecessary details omitted and some additional facts in the interest of clarity.

Paragraph 12: Rejected as contrary to the greater weight of the evidence. Paragraph 13: Rejected as irrelevant in light of other facts found.

Paragraph 14: Rejected as contrary to the greater weight of the evidence. Paragraph 15: Rejected as irrelevant.

Paragraph 16: Rejected as contrary to the greater weight of the evidence.

Paragraph 17: Rejected in part as constituting legal argument, rather than proposed findings of fact. Also rejected in part because the implication asserted in this paragraph is not supported by competent substantial evidence.

Findings submitted by Respondent: Paragraph 1: Accepted.

Paragraph 2: First six words accepted. Remainder rejected as contrary to greater weight of the evidence.

Paragraph 3: Rejected as irrelevant. Paragraph 4: Accepted in substance. Paragraphs 5 through 9: Accepted.

Paragraph 10: Accepted, with correction of scheduled return date, which was November 9, 1989.

Paragraphs 11 and 12: Accepted in substance.

Paragraphs 13, 14, 15, and 16: Rejected as contrary to the greater weight of the evidence.

Paragraph 17: Accepted.

Paragraph 18: First sentence accepted. Second sentence rejected as contrary to the greater weight of the evidence.

Paragraph 19: First line accepted. Second line rejected as contrary to the greater weight of the evidence.

Paragraph 20: Rejected as contrary to the greater weight of the evidence.

Paragraph 21: Rejected as constituting argument, rather than proposed findings of fact.

Paragraphs 22 and 23: Accepted.

Paragraphs 24 and 25: Rejected as irrelevant.

COPIES FURNISHED:

Mr. Frank King

Council Representative AFSCME Florida Council 79 2171 N.W. 22nd Court Miami, Florida 33142

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

Tallahassee, FL 32399-0458

Aletta L. Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

William A. Frieder, Esquire Department of Administration Office of the General Counsel

438 Carlton Building Tallahassee, FL 32399-1550

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

605 Suwannee Street

Tallahassee, FL 32399-0458

Robert Scanian, Esquire General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Docket for Case No: 89-007057

Orders for Case No: 89-007057