STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS J. ATWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7058

) DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on May 14, 1990, in Tallahassee, Florida.

APPEARANCES

FOR PETITIONER: Thomas J. Atwell, pro se

2320-J Apalachee Parkway Box 455

Tallahassee, FL 32301

FOR RESPONDENT: Michael J. Alderman, Esquire

Assistant General Counsel Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.

PRELIMINARY STATEMENT

This cause arose upon the Respondent's assertion that the Petitioner had abandoned his career service employment position and the Petitioner's election to dispute that assertion in a formal proceeding in this forum. In essence, the dispute arose because the Petitioner was injured on the job and was thereafter on medical leave from his employment position while convalescing from a back injury, during which time he received worker's compensation benefits. It came to pass that his treating physician determined him to have reached sufficient medical improvement so that he could return to light-duty employment with the Respondent. It is alleged that the Petitioner refused to return to employment in Tampa, where the available position was located, preferring instead to return

to employment in Tallahassee, where he had recently come to reside. Because the Petitioner did not return to work when instructed to do so by his employer, the Petitioner was deemed to have abandoned his career service position.

This cause came on for hearing as noticed at which the Respondent presented the testimony of Buck Jones and Melvin Hinson, Sr., the Petitioner's employment superiors. The Respondent also presented exhibits 1 through 5, which were admitted into evidence. The Petitioner testified on his own behalf. At the conclusion of the proceedings, the parties elected to avail themselves of the right to file proposed findings of fact and conclusions of law in the form of proposed recommended orders, also ordering a transcript of the proceedings, which was duly filed. The Respondent filed proposed findings of fact and conclusions of law, which proposed findings of fact are ruled upon in this Recommended Order and in the Appendix attached hereto and incorporated by reference herein. The Petitioner filed no proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida.

   
   

2. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida.

   
   

3. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in

   Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition.

   
   

4. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three

   (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter.

   
   

5. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters."

   
   

6. On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989), and Rule 22A-7.010(2), Florida Administrative Code. That rule in paragraph (2)(a) provides in relevant part:

   
   

   An employee who is absent without authorized leave of absence for three consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service.

   
   

8. In Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2nd DCA 1990), the court held that the presumption of abandonment and resignation established by this rule was rebuttable. It held that in order to rebut the presumption, the employee had to show a reasonable basis for failure to seek authorization for the absence in those instances when he had failed to seek authorization. In the instant situation, the presumption was clearly established by the Respondent's evidence. The Petitioner had been notified to report to work on a date certain after the Respondent had been informed by the Petitioner's physician that the Petitioner could return to

   light-duty work and after the Respondent had made the determination that a light-duty employment situation was available for him and had notified him of it. After being notified to report to this position on a date certain, the Petitioner failed to do so. He also failed to obtain approved leave for three

   (3) consecutive days for the absence from the reporting date forward. Thus, the issue to be determined remains whether the Petitioner had a reasonable basis for his failure to seek authorization for continued absence.

   
   

9. The Petitioner does not maintain that he was unable to perform the light duties which the Respondent informed him it could provide for him. His dispute with the Respondent is really over the location of those duties and that

   employment position. At the time of his injury, his employment position was actually in Clearwater for which he reported to the Division of Motor Vehicles Regional Office in Tampa. His supervisor was located at that Tampa office.

   There is no evidence that his position was ever transferred to another location in Florida, including Tallahassee. He claims that his move to Tallahassee as his residence was due in part to his being treated at the Shands Hospital in Gainesville. However, it is clear that the true reason for his transfer to Tallahassee was a personal one. It grew out of the domestic discord with his wife and their ultimate separation and his concomitant desire to be with his family in Tallahassee.

   
   

10. Only after coming to Tallahassee did the Petitioner seek treatment from Dr. Wingo and received treatment in Tallahassee. Although he seemed to maintain, to some extent, that he did not feel that he could receive proper treatment in Tampa, he also stated that he believed that he would simply have to begin his treatment program again and complained of the fact that he believed that doctors were merely using his situation to obtain fees. Although he refused to report to work in Tampa on the basis that he wished to remain under Dr. Wingo's care and not have to transfer to another treating physician and go through an entire treatment program again, in fact, prior to the hearing, he had had a dispute with Dr. Wingo over the necessity for continued treatment by him and Dr. Wingo had refused to continue treating him.

    
    

11. In summary, the evidence establishes without refutation that the Petitioner never intended to report for employment duties in Tampa when he was assigned to a light-duty position. The evidence also shows that he was physically capable of performing the duties in that position. In addition, the evidence adduced by the Respondent shows that appropriate medical treatment for his back condition was available in the Tampa area. In short, there seems no rational basis for the Petitioner's failure to report for duty on a timely basis in Tampa for the light-duty employment position made available to him there as a consequence of his injuries. Thus, the totality of the evidence indicates that his contention that he did not want to move to Tampa for employment, because of having to start his medical treatment over again or changing doctors, was not the essential reason for his refusal to report for work in Tampa. Rather, the reason was that he simply did not want to go back to Tampa for employment because of his personal desire to continue to reside in Tallahassee. The Respondent did not have an appropriate employment position for him in Tallahassee and did have the employment position in question available in the Tampa area. There is no requirement in statute or rules that the Respondent transfer that position to Tallahassee to accommodate the Petitioner's personal desire to reside in that city. Accordingly, it must be concluded that indeed the Petitioner abandoned his career service position and effectively resigned from the career service by his carrying out of his desire to continue to reside in Tallahassee and not report for the employment position made available for him in the Tampa area and which he was, as assured by his physician, physically capable of performing.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be entered by the Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service.

DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 23rd day of August, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058

Respondent's Proposed Findings of Fact 1-15. Accepted.

1. Accepted, but not material to resolution of disputed issues.

2. Accepted.

COPIES FURNISHED:

Aletta Shutes Secretary

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Leonard R. Mellon Executive Director

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, FL 32399-0500

Enoch Jon Whitney, Esq. General Counsel

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, FL 32399-0500

Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455

Tallahassee, FL 32301

Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504

Docket for Case No: 89-007058

Orders for Case No: 89-007058