STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM J. GOZZA, )
)
Petitioner, )
)
vs. ) CASE NO. 90-0403
) DEPARTMENT OF REVENUE, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Tampa, Florida, on April 17, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: William J. Gozza, pro se
1777 Rosewall Drive
Land O'Lakes, Florida 34639
For Respondent: Gene T. Sellers, Esquire
Department of Revenue
P.O. Box 6668
Tallahassee. Florida 32314-6668 STATEMENT OF THE ISSUES
The issue for consideration in this hearing is whether the Petitioner abandoned his position of employment with the Respondent, Department of Revenue.
PRELIMINARY STATEMENT
By letter dated December 7, 1989, William P. Fritchman, Personnel Officer with the Respondent, Department of Revenue, (Department), notified the Petitioner herein, Mr. Gozza, that the Department considered him to have abandoned his position of collections specialist II with the Department and resigned from career service, effective the close of business on Wednesday, December 6, 1989 as a result of his failure to appear at work, without excuse or authorization, on December 1, 4, 5, and 6, 1989. On December 12, 1989, Mr.
Gozza responded to this letter denying he had abandoned or resigned his position and requesting a formal hearing.
By Order dated January 5, 1990, Aletta L. Shutes, Secretary of the Department of Administration, accepted Mr. Gozza's Petition for Formal Hearing and assigned it to the Division of Administrative Hearings by letter dated January 8, 1990. Both parties were notified of the assignment and requested to submit proposed hearing dates, which was done by Petitioner on January 31, 1990, and by Respondent on February 15, 1990. Before Respondent's notice was
received, however, the undersigned, by Notice of Hearing dated February 6, 1990, set the matter for hearing in Tampa on April 17, 1990, at which time it was heard as scheduled.
At the hearing, Petitioner testified in his own behalf. He did not present any documentary evidence. Respondent presented the testimony of Joseph D. Burrows, a district administrator for the Department overseeing the Tampa office in which Petitioner had previously worked; Bonita Carole Dean, a collection and enforcement administrator in the Department's Tampa office; and William P. Fritchman, Personnel Officer for the Department. Respondent also introduced Respondent's Exhibits 1, 2, and 4 through 8.
A transcript was provided. Only Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the issues herein, the Petitioner, William J. Gozza, was employed by the Respondent, Department, as a collection specialist II in the Department's Tampa office. The Department of Revenue was and is the state agency responsible for the collection of money due the state in taxes, with a branch office located in Tampa, Florida.
Based on facts not described at the hearing, Petitioner was given a five day suspension from duty during the period September 11-15, 1989, and was scheduled to return to work on September 18, 1989. Petitioner did not return to work on that date and the Department was notified he was unable to do so because of a serious injury which was reportedly caused by Department employees.
On September 13, 1989, however, Mr. J. D. Burrows, the Department's District Administrator supervising the office where Petitioner worked, by certified mail, confirmed to Mr. Gozza the substance of a telephone call between the parties of that same date in which Mr. Gozza was advised to report to work at 8:00 AM on September 18, 1989. This telephone call had culminated in Mr. Gozza's indicating that he "may or may not" report to work on September 18, 1989. In the September 13 letter, Mr. Burrows clearly advised Mr. Gozza that if he was ill or injured, a telephone call to that effect on September 18, as well as a certified medical certificate from the attending physician, "stating that you are unable to perform your duties" would be required.
As was stated, Mr. Gozza did not return to work on September 18. However, on September 15, 1989, his physician, Dr. Kadosa, submitted a "disability statement" indicating that Petitioner was under his care for injuries received on September 11, 1989, and that these injuries "resulted in disability" from September 15, 1989 through October 16, 1989.
On October 13, 1989, Dr. Kadosa submitted a second "disability statement" which indicated that the disability dates were extended from October 16, 1989 through November 16, 1989. Neither of these two statements contained the comment that Mr. Gozza was " unable to perform [his] duties." At hearing, however, Mr. Burrows indicated that his understanding of the word "disabled" or "disability" was that the individual so described was unable to perform his duties.
On November 13, 1989, Dr. Kadosa submitted a third statement addressed to "To whom it may concern", advising that Mr. Gozza could return to work under light duty conditions on December 1, 1989, and that he was to work between two
and four days a week, four to five hours per day. This third statement was accepted by Mr. Burrows as a certified medical excuse, but he also considered it as authority for Mr. Gozza to begin work again on December 1, 1989.
Consistent with that conclusion, on November 15, 1989, Mr. Burrows wrote to the Petitioner by certified mail, tracing Petitioner's medical history from September 13, 1989, and advising him that the September and October medical certificates submitted by Dr. Kadosa were considered "not appropriate medical certifications to support the necessity for [him] to be off work" and that the Department considered him to be on unauthorized leave without pay during that period.
Mr. Burrows also advised Mr. Gozza that prior to being able to return to work, he must obtain an appropriate medical certification from the doctor indicating that the doctor had determined that it was medically necessary that he not be at work for the period of time he was off from work since Monday, September 18, 1989.
Mr. Gozza did not receive Mr. Burrows' November 15, 1989 letter until November 28, 1989. On that day he had a telephone call with Mr. Burrows the nature of which, if not the substance, is in dispute. Both parties agree that the topic of discussion was Mr. Gozza's prior and continuing absence from work, and both parties agree that Mr. Gozza was advised by Mr. Burrows that he was to report to work on December 1, 1989. Whereas Mr. Gozza indicates Mr. Burrows told him that when he reported, he must have an appropriate medical certificate and that he was not to report without it, Burrows denies this contending that when he advised Gozza to bring a medical certificate, Gozza advised him he would not be able to do so until at least December 4, 1989. Mr. Burrows contends that at no time did he indicate to Mr. Gozza that he was not to come back to work without the certificate, and both he and Ms. Dean, Mr. Gozza's immediate supervisor, indicated that had Mr. Gozza come to work without the certificate, but on time and as directed, some accommodation would have been made to allow him to return to work and to submit the required medical certificate at a later date when he was able to see his physician.
Considering the evidence as a whole, it is found to be highly unlikely that either Mr. Burrows or Ms. Dean, who also spoke with Mr. Gozza on several occasions regarding his absence, told him that he could not come back to work without the certificate. The unalterable fact is that Mr. Gozza did not report to work, with or without a certificate, on December 1, 1989, the day he was directed to return, nor did he report on December 4, 5, or 6, 1989, the subsequent Monday, Tuesday, and Wednesday.
On December 4, 1989, after Mr. Gozza failed to report as directed on December 1, 1989, Mr. Burrows recommended to Department personnel officials in Tallahassee, that Mr. Gozza's position be considered abandoned on the basis that he failed to come to work for three days and failed to provide the required medical backup, complicated by his failure to call in to the agency to explain. Thereafter, on December 7, 1989, Mr. Fritchman, Department personnel officer, advised Mr. Gozza by letter that the Department considered him to have abandoned his position of employment as of the close of business on December 6, 1989.
This letter traces the Petitioner's absence history from September 18, 1989 through the date of the letter, and outlines the efforts made by Department personnel to explain to Mr. Gozza what was required of him to justify or excuse his absences, in addition to the regulatory provisions under which the excuse requirements were provided and under which this termination action was taken.
Mr. Burrows and Ms. Dean both admit that at no time did they attempt to contact Mr. Gozza's physician to secure the medical certificate needed. Both claim it was not their responsibility to do so but that of the employee, and that this responsibility was impressed upon Mr. Gozza, directly, on several occasions. A Department memorandum, dated May 24, 1989, dealing with approval of leave without pay, such as medical leave in excess of sick leave, specifically states at paragraph 7, that "the employee is responsible for obtaining appropriate medical certification when requesting leave without pay for medical reasons." Mr. Gozza pointed out that the memorandum was addressed to all supervisors and that he was not personally provided with a copy and, therefore, did not know of the agency policy. This is clearly an ingenuous argument. Both Mr. Burrows and Ms. Dean were quite clear in their statements that they had advised Mr. Gozza directly that it was his responsibility to get the proper medical certification. This position was supported by Mr. Fritchman, and none of the three could recall any case where in a situation such as here, wherein an employee needed certification for an absence due to a medical condition, that Department employees assumed the absentee's responsibility for procuring his medical certificate. It is so found.
Mr. Gozza also repeatedly alleged that the current action was not based on valid factual grounds but was taken as retaliation against him for his prior report of discrimination and corruption within the Department. Mr. Gozza presented no evidence of what the discriminatory activity to which he referred was or the nature of the corruption to which he alluded. However, both Mr. Fritchman and Mr. Burrows admitted that such a complaint was filed and was forwarded to Department officials in Tallahassee. Further, the evidence tends to suggest that as a result of "complaints" and "grievances" filed, including that of the Petitioner, Mr. Fritchman, along with others on an inspection team, came to Tampa to look into these allegations. No evidence was presented as to what the result of this investigation was and what corrective or other action, if any, was taken.
The allegation of retaliation, which was unequivocally denied by Mr. Burrows, Ms. Dean, and Mr. Fritchman, is not supported by any evidence, and it cannot be found that this personnel action is based on anything other than Mr. Gozza's unexcused failure to come to work on December 1, 4, 5, and 6, 1989. Findings of Fact cannot be based on allegation alone. Evidence to support the allegations is required if they are to result in a positive finding. Here, there is no more than an allegation without supporting evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
The Department has taken the position that Petitioner, Mr. Gozza, abandoned his position as a Career Service employee since he absented himself from his job without authority and without legal justification for a period in excess of three consecutive days. To support its position, the Department relies on the terms of Rule 22A-7.101(2)(a), F.A.C., which provides:
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 ....
This rule has been held by the courts to create a presumption that by absenting himself as stated, an employee indicates a desire to terminate his relationship with his employer without giving his reasons therefor in writing, Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (1st DCA Fla. 1978).
The above-cited rule does not, however, operate automatically. To base a personnel action upon that provision, the agency must notify the employee in writing that it considers him to have abandoned his position and give him the opportunity to rebut the presumption of abandonment. That is the basis of the action here. The Department contends that having been notified orally and in writing of his responsibility to report to work on December 1, 1989, his failure to report as noticed and his continued absence on the three consecutive workdays, without legitimate excuse or justification, constitutes an abandonment of his position. The Department's position is well taken here, and Petitioner cannot be heard, successfully, to claim that he was not aware of the requirement to obtain and provide appropriate medical certification. While admittedly, the memorandum provision cited by agency personnel was addressed to supervisors, it was available for review by all employees and, in any case, Petitioner was personally advised by both Mr. Burrow and Ms. Dean that it was his responsibility to obtain the medical certificate and present it to his supervisor. His claim to have believed he could not come back to work without it is not worthy of belief.
Assuming that the September through November, 1989 absences were because of his "disability", and giving him the benefit of the decision in light of Mr. Burrow's admission that he considered a "disability" here as meaning the Petitioner could not come to work, that prior absence can be considered as having been excused. However, there is neither justification nor excuse for Petitioner's absence from December 1, 1989 to December 6, 1989, the day his absence was considered to constitute abandonment. Even had he come back to work during that period without the required medical certificate, while other disciplinary action might have been available to the Department, his return to the workplace would have tolled the running of the absence period which, under the present circumstances, clearly constitutes abandonment.
Based on the foregoing Finding of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that a final Order be entered finding that Petitioner, William
Gozza, abandoned his position with the Department of Administration and resigned from the Career Service when, on December 1, and 4-6, 1989, without authority, he absented himself from his work place for three consecutive days.
RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 6th day of June, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0403
The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed findings of Fact Submitted by the parties to this case.
BY THE PETITIONER:
None submitted.
BY THE RESPONDENT:
& 2. Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted.
& 6. Accepted and incorporated herein.
Accepted and incorporated herein.
& 9. Accepted and incorporated herein.
Ultimate fact accepted and incorporated.
Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted.
First sentence accepted and incorporated herein. Balance is no more than comment on the sufficiency of the evidence.
Accepted and incorporated herein.
Accepted and second sentence is incorporated herein.
Not a Finding of Fact but more a statement of the pertinent regulatory provisions.
COPIES FURNISHED:
William J. Gozza 1777 Rosewall Drive
Land O'Lakes, Florida 34639
Gene T. Sellers, Esquire
204 Carlton Building Post Office Box 6668
Tallahassee, Florida 32314-6668
Aletta Shutes Secretary
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Augustus D. Aikens, Jr. General Counsel
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
J. Thomas Herndon Executive Director Department of Revenue
104 Carlton Building Tallahassee, Florida 32399-0100
William D. Moore General Counsel Department of Revenue
203 Carlton Building Tallahassee, Florida 32399-0100
Issue Date | Proceedings |
---|---|
Jun. 06, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Aug. 08, 1990 | Agency Final Order | |
Jun. 06, 1990 | Recommended Order | State employee's failure to return to work within 30 days after suspension was up and after expiration of medical excuse was without justification abandonment. |